LAND PA TENTS

·f

-~ MEMORANDUM OF LAW
HISTORY, FORCE AND EFFECT
OF THE LAND PA TENT

S. Jay Stewart
 LAND PA TENTS

MEMORANDUM OF LAW

HISTORY, FORCE, AND EFFECT

OF THE LAND PATENT

 ..
j

MEMORANDUM OF LAW
HISTORY, FORCE, AND EFFECT
OF THE LAND PATENT

Copyright © 1984 by S. Jay Stewart

Printed in the United States of America. No part of this manuscript may be used or reproduced
without written permission except in legal briefs, complaints, memorandums, or in cue of brief quota-
tions embodied in other articles.

Library of Congress Number 84- 72491

ISBN 0-911311 -09-2
 I

CONTENTS

Key to Legal Citations . .......................... . ............. iv

Foreword . .. . . ............ . .................................. v

An Overview . .. . ............................... . ............. 1

Allodial-v-Feudal Titles . . ....... . ............................. 21

Land Ownership in America Today

The American Feudalistic Society . ....................... . .... 24

Land Patents, Why They Were Created. ...... . ....... . .......... 31

Conclusion . . . .. .. . . . .. .. . ...... . ...... . . .. .................. 51

Brief in Support of Common Law Liens . .. . ...................... 51

A Leaming Tree . ..... . ................... . .................. 59

Appendixes . ................................................ 61

Forms .................. . .............................. . .... 63

Abridgement of the Debate of Congress . ................ . ........ 66

Act of Congress , April 24, 1820 . .... .. .... .. . . . ..... . ........... 68

iii
 KEY TO LEGAL CITATIONS

Legal citations are almost always written in a shorthand of sorts, abbre·.-iation be-
ing the rule rather than the exception. There is a reason for this. The long form would
possibly increase the size of a brief by a third, possibly by doubling it. Thus it
becomes necessary to understand the meaning of abbreviations as one would under-
stand the cast of characters in a play. Here, for instance, is a citation:
Reynolds v. Borel, 86 Cal. 538, 25 P. 67 (1890).
And here is what it means:
Reynolds v. Borel .......................................... The name of case.
86 ......................•........•.......... Volume number (book number).
Cal. .. Identifies the volume by name (Cal. Reports), and that the case was decided in
California
538 ......... Indicates page number where this case begins in this particular volume.
The rest of the cite 25 P. 67 (1890), indicates that the case can also be found in
Volume 25 of the Pacific Reporter at page 67 and that the case was decided in 1890.

LEGAL ABBREVIATIONS
Id., idem, Latin, the same as previously given or mentioned. In legal writing instead
of citing the same case over and over, as you refer to it below, you are permitted to use
Id which refers you to the above citation, (without actually typing it in) and in some
instances to a particular page (Id. at 243) of the above cited case.
To effectively research the cases cited in this material you might need to know some
of the following legal abbreviations:
A. Atlantic Reporter
A 2d. Atlantic Reporter Second Series
App cas. Appeal case
Dall. Dallas' U.S. Reports
F. Federal Reporter
F 2d. Federal Reporter Second Series
F Supp. Federal Supplement
How. Howard's U.S . Reports
N. W. Northwestern Reporter
N. W. 2d. North Western Reporter second series
N. Northeastern Reporter
N.E. 2d North Eastern Reporter second series
P. Pacific Reporter
P 2d. Pacific Reporter second series
U.S. United States Reports
Scam. Scammon's Reports, Vols. 2-5 Ill.
S. W. Southwestern Reporter
S. W . 2d. Southwestern Reporter second series
Wheat. Wheaton's U.S . Reports
When state abbreviations are used in citations, such as Ill., Minn., Me ., Mo., ett., this
will indicate that the case is in that state's particular State Reports, at volume number and
page number as written.
iv
 FOREWORD

"WHY ARE WE HERE?"

The question was asked at a press conference in which farm foreclosures were
discussed. The answer was complex, yet simple, as are the contents of this book.
Certainly the issue of many sovereign citizens holding the land as insurance against
tyranny prompted Washington's soldiers to endure hardships that outdistanced the
imagination. The idea that the government "that governs least governs best" was
more than a slogan to those early Americans. At issue, first, last and always, was the
matter of land ownership, the nature of land title, and the role of government in
warding off the predators, namely speculators, banks and corporations.
At the end of the Revolutionary War, readjustment came hard. Paper currency col-
lapsed. There was little hard money.
To protect grasping landlords and unscrupulous lawyers, state governments often
used the same hated English legal principles that had brought on the American
Revolution in the first place.
In Massachusetts, the courts foreclosed mortgages and jailed farmers for nonpay-
ment of taxes-and even seized livestock and household furniture-in a manner that
would have pleased Lord Mansfield himself. Then, as now, the federal government
washed its hands, Pontius Pilate style. With the Revolution still fresh to memory,
many farmers struck back. In 1786, a force of irate dispossessed swept through the
Connecticut Valley and the Berkshires. They were led by a Western farmer named
Daniel Shays, who had served as captain in the Revolutionary War. Shays and his
men closed down courts and even forced the Supreme Court of Massachusetts to ad-
journ. They attacked the federal arsenal in Springfield. It took General Benjamin
Lincoln and 4,000 soldiers in the field to subdue the rebellion.
The very idea of anarchy disturbed thoughtful people from New England to
V
 Georgia. A teaeral governmenI llilU 11 :lill1LC: .\Uppvu "J"''-'U LVV ..... - •• ·- ---- ....... ---- - -
nal security without troops was called into question. So was the public policy on land.
That public policy found its finest press in the Homestead Act of the Lincoln ad·
ministration. Yet an even more important law was passed on April 24, 1820, many
decades earlier. It simply put a minimum price on public lands, required payment in
cash, and limited the size of land transactions. Subtle in its wording, far reaching in
its impact, and totally American in its concept, this law handed off to the bureaus and
the legal system the workaday business of conveying title papers, handEng claims and
counterclaims, and making court judgments. The intent of Congress was clear
enough. Not for nothing had the Congr..:ss vowed-"to shield the present settlers
upon public lands from merciless speculators, whose cupidity and avarice threatened
the population at large." (See Appendix, Abridgement of the DebateJ of CongreJJ,
page 66.)
Memorandum of Law, Hutory, Force and Effect of the Land Patent, covers the
trail of the land patent in the courts of the states and the nation. The cases presented
herein reveal that the government's own conveyance of land title confers a special
status on land, a status as unique as an individual's personality-in a word, abJolute
title. e very concept of abJolute negates the idea of subse ·
The text of 1s ook has been prepared from two vantage points. First, the section
styled An Overview was written by the editor of Acru U.S.A., Charles Walters, Jr. It
explains why and how public policy led to the present wave of foreclosures.
The most important section deals with law. It was prepared by S.J. Stewart and
several researchers under his command. Its objective is to furnish lawyers with
research data they will find useful in serving their clients under foreclosure attack.
Useful documents are a part of the general appendixes.
The world has turned over several times since the wisdom of the Founding Fathers
lit up the sky like a first magnitude star. Today the federal government is the prince of
land grabbers. Using every device available-programs to control floods, projects to
preserve wildlife, monuments to rescue history, and a predatory expansion of govern-
ment itself-the federal government has taken title to fully one-third of the American
land mass. All the agencies of government now active could not be housed in all the
office space of the nation's ten largest cities. The government lending agencies,
FmHA, PCA, Land Bank, and others, grant something like S750 billion credit per
annum-more than the nation's 70 largest lenders. These same agencies are now
front-runners in making people homeless, just as Jefferson warned. And still the laws
and decisions supportilJs land patents remain on the books. A famous biblical
pasap h~ it, Our prop/~ perish for want of knowledge, or words to that effect. This
JittJe book bu b«n published so that freeholders may not perish from the face of the
earth.

vi
 THE TRIAL

OF LAND PATENTS

IN THE UNITED ST ATES

THEY WERE A PROPHETIC LOT, those Founding Fathers. Without knowing all the
details, they seemed to know what the charcoal outline of the nation would be 200
plus years later. Jefferson used a term that has a quaint ring today-"a landed
aristocracy.'' ''If the American people ever allow the banks to control issuance of their
currency," he wrote, "first by inflation and then by deflation, the banks and corpora-
tions that will grow up around them will deprive the people of all property until their
children will wake up homeless on the continent their fathers occupied."
Land, its management, its ownership, all dominate the lifespan of ecological
systems, and therefore economic systems. All food supplies in the world-even the
fish in the sea-come directly or indirectly from the soil, chiefly from those few inches
of earth known as topsoil. And topsoil is a commodity in rare supply. There are a few
areas in the world where topsoil is several feet deep, but for the most part that lifeline
is paper-thin. Most farm areas of the world have topsoil less than seven inches deep.
On a 24-inch globe, this would have to be represented as a film three-millionths of one
inch thick. This is all that stands between man and his demise.
Thomas Jefferson and Benjamin Franklin knew this. They knew more than
moderns of the 1980s that some 23 advanced civilizations have come and gone during
the few brief moments we count as history, all of them victims of land abuse,
deterioration of population quality, socialism, the dole and decay-in that order and
in that order of importance. They knew about the ancient port of Ur, now 150 miles
from the sea. Some 35 feet of silt hold in escrow its ancient buildings for persevering
scholars. Iraq-in which are located the valleys of the Tigris and Euphrates-was
once the site of great civilizations. These rivers overflowed frequently to renew farm
acres, and these same acres served as the granary of the Babylonian Empire. Ar-
cheologists have discovered great irrigation systems based on these rivers, and Pliny,
the Roman naturalist, tells about bountiful harvests of grain two times each year,
The Trail of Land Patents in the United State.J 1
 with sheep grazing the land between crops. Yet today less than 20% of the land in
modern Iraq is cultivated. Forgotten towns and ancient irrigation works are filled
with silt, the end product of the oldest and biggest polluter in history, soil erosion.
The circle between international trade, industrial power and government sanction
thereof became a prime concern even before the U.S. Constitution was written. The
land had to be in the hands of the multitudes, Jefferson reasoned, or democracy could
not survive. That is why the Founding Fa.~hers relied on common law and n,ade its
recognition secure in the Constitution itself.

COMMON LAW
"About 800 laws in the Bible deal with all aspects of national life," reminds
Lawrence L. Humphreys, Jr. of Heritage Library, Velma, Oklahoma. "Our forebears
in England used these laws as the standard for their government, and from their prac-
tical application of these laws there evolved the common law or the customs and tradi-
tions of the people, and the procedures interpretation and application of these laws to
everyday life. The framers of the U.S. Constitution grew up in an era when 95% of the
educational curriculum was the Bible. Hence they had a very real understanding and
appreciation of the common law. They constructed our Constitution so that citizens
could observe and obey the common law. We ergo are guaranteed common law rights
under the Constitution."
"The common law stands in sharp contrast to civil law, a legal system developed to
govern contractural arrangements and creatures of the state, namely corporations. It
is estimated that man has made about four billion laws in the last 6,000 years. Cur-
rently, for every one law passed by Congress, unelected regulators make about 6,000
rules and regulations that have the effect of law. Historically, this type of system has
eventually collapsed of its own weight, because red tape finally strangles the produc-
tive capacity of the nation."
The complaint current at the time of the Founding Fathers was that Englishmen
had not been deprived of their rights by force of arms, but by the cleverness of Nor-
man lawyers. This could not happen in the United States, the Founding Fathers
reasoned, if-in the words of Ben Franklin-we have the wit to keep our republic.
Subsection 5 of Section 8 of the U.S. Constitution was adopted in order to establish
for "ourselves and our posterity" a par economy. This subsection authorizes Congress
to regulate the value of money. Needless to say, money's value is not determined by
the numbers printed on a piece of paper. It is governed by buying power, and buying
power is regulated by structural balance between agriculture, manufactures and ser-
vice industries. Once before Congress passed legislation based on this constitutional
authority. The result was a decade of par operation for the United States. During this
period no great surpluses were built up, debt didn't run rampant, farmers enjoyed
parity prices at the marketplace and government balanced the only budgets between
the Depression of the 1930s and the present. This may be the most important book
you'll ever read. Learn the answers; then pass it on.
The third act of the First Congress was a tariff law to prevent cheap foreign goods
and debased foreign currencies from determining the value of American money.
Without a debased money supply, those great lawmakers reasoned, it would be im-
possible for the money lenders to whipsaw the people between inflation and depres-
2 Land Patents
 sion, and make them landless in the country their fathers settled. We cannot suggest
that the framers of the Constitution foresaw all the details. Possibly they did not
visualize how sliding parity and sick technology would become conduits through
which a diverse society would travel toward total centralization, the death knell for a
free people. Perhaps they did not foresee the exact mechanism that would permit
policymakers tu pace the rate of farm bankruptcy, to keep it high enough and low
enough so private enterprise in agriculture would drown without vpen revolt. But they
did see the ultimate objectives of the "landed aristocracy" -all the land in a few
"strong hands." With this goal securely in mind, the push got underway, culminating
in sliding parity circa 1950s.
The crude stuff of yesteryear couldn't hold a candle to sliding parity and toxic
technology for effectiveness in reaching this goal. In 1921 the Federal Reserve
demanded payment of all farm loans "immediately"-not in staggered intervals of,
say, 30, 60, or 90 days. The wave of bankruptcies came on so severe that farmers
literally marched. The Wild Jackasses swept through the Dakotas, Minnesota, Iowa
and the cornbelt. Three decades later, with government help, farmers stayed too
numb to really get mad. A typical example of that public policy in action became a
matter of record at North Carolina University, where $34 million of the taxpayers'
money was spent to develop a combine that would cut out more workers and be too
expensive for small farmers to buy or compete against.
A decade ago, hardly 1 % of the farms in the United States produced 25% of the
nation's food, and 8% accounted for over half of agricultural sales. The really big
farms were being run by such corporations as Dow Chemical, Southern Pacific
Railroad, Boeing Aircraft, Tenneco. Since then the situation has worsened, yet "the
myth that big farming has produced cheaper food is just that-a myth. Large cor-
porations use their control of the market to force out smaller competitors and then
raise prices," according to the Commission on Critical Choices, Austin, Texas, a fact
finding forum. Some hint of distorted accounting principles can be noted in the
Agribusiness Accountability Project finding that in 1970 alone Tenneco received Sl.4
million in land subsidies, paid no federal income taxes at all, and made $73.8 million
in profits. Yet at year-end 1974, 1,000 small farmers a week were still being forced
from the land. The average bankruptcy, all sizes, has been in excess of 2,000 a week
for decades.
To understand why farmers are being driven off the land, it is necessary to recall
the 1930s, an era in time when the U.S. went into the world running business. It was
determined at that time that more international trade was both inevitable and
desired. From a public policy point of view it was settled once and for all with Cordell
Hull's victory for free trade via the Reciprocal Trade Agreements Act of 1934. The
consequences for agriculture are evident today in terms of FmHA, Land Bank and
PCA foreclosures-plus commerical institution foreclosures as well.
Yet Cordell Hull was clearly in error. There were few isolationists and few free
traders shortly before and after the great depression, because 90% of the people were
for something far more than embargo on the one hand, but far less than free trade on
the other. A century before WWII, only 5% of the nation's imports were on the free
list; 90 years before the great conflict, 15 % were on the free list; 65 years before Pearl
Harbor, 25% were on the free list. By 1900 ap;Jroximately 50% of the items imported
The Trail of Land Patents in the United States 3
 could enter the nation free. Late in the 1930s, some 60 to 70% of the imports were on
the free list. High tariffs did not cause depression, and low tariffs did not restore pros-
perity. Each of the tariff acts following WWI (acts of 1921, 1922 and 1930) averaged
considerably lower than the average tariff acts maintained for SO years before WWI.
True, imports decreased fully two-thirds between 1929 and 1933, but this fall-off was
not caused by tariffs, but by collapse of America's internal economy. By 1930-before
passage of the Smoot-Hawley Tariff Act -world imports had fallen below S29 billion,
a dec:·:ase of nearly $7 billion. By 1931 imports fell another $8 billion. A year later
imports fell another $7 billion. Collapsed s~curities and collapsed commodities ac-
counted for collapsed buying power.
"Just as the Tariff Act of 1930 had no measurable relationship to the worldwide
decline in imports and exports, so too," said John Lee Coulter of the U.S. Tariff Com-
mission, "the so-called Reciprocal Trade Agreements Act had no relationship to
recovery."
Prices in general advanced about 20% between 1934 and 1937. But prices of com-
modities on which tariff reductions were made decreased 9. 9 % . Thus it appears that
the concessions made by the U.S. in effect C:'."Jught on the following general results.
1. They served to force farm prices down and prevented them from recovering.
2. They displaced farm products in the American market by encouraging an in-
crease in imports.
3. They displaced factory products, thus causing unemployment in the industrial
sector and hurting the farm market by lowering the purchasing power of factory wage
earners.
4. They thus became a factor in holding down factory payrolls because of the severe
competition from foreign products, thus lowering labor's purchasing power and in-
terfering with development of a profitable market in the United States for the prod-
ucts of the farm. By 1937, duties on 47% of all dutiable farm raw materials had been
lowered in homage to the Reciprocal Trade Agreements. Although the law also per-
mitted increases in tariffs, none were made.
The post- WWII effect of this public policy was to drive farm prices down, first to 60
to 90% of parity, finally to the world level. :'his protectionism for world traders and
USDA client corporations resulted in business losing markets in rural America.
Moreover, as new capital for expansion failed to arrive, enterprise was forced to turn
to borrowed capital. When the going concern of business has to borrow, it has to pay
interest-and the consequence has been a public and private debt multiplying chain
letter style ever since. As raw materials prices went down, business lost money for the
simple reason that it lost the volume of markets necessary to earn profits needed to
meet wages and capital costs. Every statistic in the Economic Report of the President
screams this message, but the great names in economic theory cannot listen. They are
prisoners of a "theory period," a theory period in love with its failure to explain the
phenomenon.
Raw material prices in the United States are subject to constant and devastating
price attacks from the rest of the world under a system of low tariffs simply because
the United States is the high market. The anatomy of all this is simple in the extreme.
The low cost producer sells to the high mar;..et, and the high market pulls down its
own standard of living to comply with world standards. Yet circa 1983, farmers ac-
4 Land Patents
 tually believe that their own welfare- and the welfare of all America-rests in finding
more international markets to which farm production can be sold at half price .
Farmers think this way because the intellectual advisers have convinced them . Con-
gress has come to accept the absurdity that free international trade erases political
isolationism, stops wars and represents high science in economics. Secure in their
opinions that this matter has been settled onC'e-and-for-all, the leaders of government
believe they have only to endure a little carping from union leaders (when jobs are ex-
ported to low cost countries, i.e., Red China, which has lavish wages running as high
as a dollar a day). Nor is it inexpensive to background security for the nation's goal of
low parity trade expansion. The Pentagon continues to be the world's largest office
building. It presides over 1,300 major military installations, with 334 of the linchpin
units in 21 countries, and 25 in U.S. territories. There are also 3,000 lesser military
installations in foreign nations and U.S. possessions. Fully 25 % of all active duty per-
sonnel are stationed outside the U.S. "to protect American interests," namely banks
and satellite corporations. Sound accounting procedures seemingly would require
some of these costs to be subtracted from trading profits. They aren't, of course, nor
are they billed to the traders. They are a cost of public policy.
This is where we are. And as Dr. Breimyer of the University of Missouri once said,
"Always, in projecting into the future we start from where we are." Any effort to
bring suitable cash flow into agriculture always runs into the reality that a strong in-
ternal economy for the United States has been sacrificed on the altar of free interna-
tional trade. There have to be farm programs, otherwise the bleeding natives might
get too restless. There has to be "save the family farm" rhetoric, else all the urbanites
with farm roots might listen to the heresy contained in books like Unforgiven and
those preaching with a passionate state of mind. Schoolmen have to observe that
agriculture is inherently unstable, but this is due to everything under the sun other
than a correct basic public policy.
As long as free international trade- cemented into place with GA TT negoti-
ations-remains the highest form of public policy, it is useless to discuss the Constitu-
tional mandate for Congress to coin the money and "regulate the value thereof." The
last is impossible without stabilized raw materials' prices and a strong internal
economy. No wonder the economists can only busy themselves with Mickey Mouse
programs for relief, and with computations on how something less than disaster on
the farm home front can be dovetailed with the international market.
Luther Tweeten of Oklahoma State University possibly spends much of his time
finding a correct rationale based on the free international trade gambit. The rural
picture for the real producers of farm commodities isn't all bad, he said. Some 5% of
the producers account for approximately 50% of commodities moving into trade
channels, circa 1984. Further, these producers are able to make a profit at half-parity
prices. Tweeten points out that the natural rate of interest is 3 to 5%. He then says
the rest of the interest cost in operating a farm will be recovered in appreciated land
values upon termination of the enterprise. Other bookkeeping advantages make the
producers with 50% of the farm production profitable at current prices. Needless to
say, farmers do not remain solvent on the basis of balance sheets computed in some
never-never land. They live and operate off cash flow. They pay themselves out of cash
flow . They liquidate short-term debt the same way. And they are pushed into Chapter
The Trail of Land Patents in the United States 5
 11 or Lllapu:r / wuc;u u 1c; 1.,(10) 11 U V" .... ...... ~ , . ~ - · · · · - · - - - - .. - -
tion times price. Relief checks, more debt, writeoffs and other· Mickey M~use ar-
rangements can't undo the havoc wrought by three decades of faltering parity.
No one seems to have an answer, and yet no one has pointed to the reason why there
can be no answer. The U.S . has gone into the world-running business because a few
international businesses advised it. This requires sacrifices. Dr. John Lee of USDA is
quite frank when he says some American industries will have to fold. The American
shirtmaker will not be able to compete with tue cotton worker in Cheng Ch()w. Motor-
car makers will have to bow to the fact that workers in Japan d.Ild Borneo endure ten
hour days at wages only a fraction of those paid in Detroit, and automakers in Sao
Paulo earn in a day what their U.S. counterparts earn in an hour. There was a time
when hardly S to 5.5% of the GNP was accounted for by international trade. Between
1950 and 1970 such trade averaged less than 7% of GNP. The beloved trade figure is
now pushing 15%. The price-10 to 12 million unemployed, a S200 billion federal
deficit, 250,000 productive farm enterprises in danger of liquidation by agency
lenders of last resort-FmHA, Land Bank, etc. Should public policy achieve 50% of
GNP based on international trade, then-likely as not-half of America will be living
in trailer homes, and the rest might well get ready to wear the loincloth.

MONETIZED RAW MATERIALS

The invention of credit and commercial banking to accomodate changes in the
state of the arts and population growth carried with it the danger Jefferson visualized.
Still the United States developed a unique commercial banking system, one
understood by too few. So pardon us for quoting at length from a brief historical ac-
counting of evolution of the commercial banking system published by the American
Institute for Economic Research, Great Barrington, Massachusetts. We think it ex-
plains why the American nation could absorb great migrations from Europe, the
Volga region, from Ireland, and from other parts of the world, and why Russia and
Europe fell into chaos at exactly the same time.
"When this nation's economy boomed after the Civil War until World War I, the
markets developed a system to meet the needs for effecting in a non-inflationary way
the growth process. The basic principle of sound commercial banking evolved in free
markets. The gold exchange values of things produced coming into the markets were
briefly monetized, as though they were so much gold, by the commercial lending pro-
cess, which involved automatically self-liquidating short-term loans. When the loans
were made, the banks created corresponding credits to the checking accounts of the
shippers, amounts not deducted from other checking accounts. In effect this made
the gold standard flexible enough so that the great unforeseen increase in production
and even greater need for transactions money was accommodated. These newly
created purchasing media were cancelled by repayment of the loans as things were
sold in the market.
"No economist invented the system. No governments created it. Human beings
operating in free marIce ts coped with a problem for which no solution previously had
been provided." [Emphasis added.]
Do not overlook the language quoted above-"The gold exchange values of things
produced coming into the markets were briefly monetized, as though they were so
6 Land PatentJ
much gold" because this process achieved the equivalent of what we refer to today as
parity. Before the Wilson administration, before the enactment of the Federal
Reserve Act, parity farm prices were provided for in the market place. Import inva-
sion of raw commodities was more difficult to come by. The result was "a system to
meet the needs for affecting in a non-inflationary way the growth process." .
To be sure, there were hard times, drought periods, recessions and depressions, but
for a hundred years the nation grew in both capital and peopL, and the system ac-
commodated it all. At the time of the American Revolution, the population of the
thirteen colonies was approximately 2.5 million. At that time Great Britain had 9
million; France, 24 million; Russia approximately 16 million; all of Europe, ex-
cluding Russia, 128 million. By 1910, the United States had 91.6 million, or twice
that of either Great Britain or France, each with about 40 million at that date. Using
the native white birthrates prevailing in the past it is reasonable to estimate that the
original white stock (the ones in the country at the time of the American Revolution)
contributed about half the population by 1920, the other half being credited to im-
migrants and their descendents. And yet this new land accommodated this expanding
population without touching off enduring periods of starvation or incubating history's
periodic convulsions.

MONEY CIRCULATION
The problem of an organized society [wrote Carl H. Wilken] is how to bring enough
money into circulation each year to enable the people to buy the wealth they can pro-
duce in order that all may live on an American standard, provide for the needs of
government, and have something for a savings account as a foundation for security
and growth.
There are just three ways to bring money into circulation, viz:
1. By the production and sale of the raw materials-products of the ground. That is
the dollar we earn.
2. By direct issue by the government as provided in the Constitution. The issue of
money leads to inflation.
3. By taxation or some form of credit device. That is the method we have been
following, and it leads to bankruptcy, because it dissipates the savings and future
earnings of our people.
The process of creating wealth starts with the production of raw materials- the
products of the ground. Manufacturing, transportation, and other functions of
business and capital represent only services which could not be performed at all if the
raw materials were not first produced. The amount of real wealth brought into ex-
istence is measured by the number of units of raw materials produced. Society has in-
vented measures of weight, length and volume which never fluctuate and remain con-
stant year after year, but our measure of value resembles a modern jitterbug. The
amount of goods and services such units of new wealth will buy is measured by the
price per unit received by the producer of such new wealth. Therefore, the number of
units of raw materials produced times the price received equals the new dollar income
created during each production cycle or year; the turnover of these dollars in the
channels of grade determines the wages of labor and the collective income of the na-
tion.
The Trail of Land Patents in the United States 7
 J:"•Or example, lile Salt: Ul 1,V\N UU;:'>Jlt;l;:'l Vl Wll C. a l al...,.._ J:'"'• vu. ..... . _ . ~ · - " ~ - r - - - - - -
Capital structure of $1,000 and starts $1,000 on the way into our trade channels. One
thousand bushels of wheat at SO cents per bushel draw out only $500 and reduce the
primary flow of money accordingly. (Under the commercial banking system, creation
of a loan to accomodate entry of a new crop into trade channels amounts to mon-
etization of the crop-Le., turning it into money.) It is the bushels of wheat, tons of
coal, pounds of meat, etc., that the people trade. The dollar measures the relation-
ship of the commodities exchanged. When the producer spends the dollar received for
his product he passes the purchasing power to the next man and the next. The units of
raw materials-new wealth-are transform~d by industry into other forms of wealth
and become permanent assets of society. That is not true of either the dollar of issue
or the credit dollar.
These three systems of money creation, examined in depth, readily illustrate the
absurdity of issue authority being bestowed on the commercial banking system
without some governing device. Once upon a time-and until the Lyndon Johnson ad-
ministration-a store of gold, the common denominator commodity, presumed to
stand guard and say, So far you may go, and no further! This requirement would have
stopped the debt creation madness in its tracks by springing the trigger mechanism to
recession in approximately 1968. When the moment of truth arrived, however, the
Johnson administration elected to dismantle the trigger mechanism. The significance
of that event escaped instant comprehension by the great minds of academia and
government. Admittedly the new public policy could not have been possible without a
fuel measure of "public gullibility." Apparently only young minds groping for
answers could pause to ask, "Where does this money come from, and where does it
go?" And except for the atmosphere of intimidation under which classroom instruc-
tion commonly proceeds , young minds would have required an answer. A timely
answer would have prevented the present mortgage foreclosure crisis.
The astounding principle that money can be created out of thin air with the hope
that its creation will be answered by real production dependent on an energy flow
harks back to John Stuart Mill. Mill often ridiculed those who wanted a tie between
currency and something physical. Success of the old English system in fact depended
on some confusion between debt and wealth, confusion that haunts economic reason-
ing to this day. H.D. MacLeod, writing in The Theory of Credit as early as 1893, pur-
sued the proposition to its logical conclusion. A merchant's credit or ability to run in-
to debt is wealth, MacLeod pointed out. Their credit constitutes wealth, and therefore
wealth can be created out of nothing. "How is debt created? By the mere consent of
two minds. By the mere fiat of the human will. Whe11 two persons have agreed to
create a debt, whence does it come? Is it extracted from the materials of the globe? It
is a valuable product created out of absolute nothing, and when it is extinguished it is
a valuable product decreated into nothing by the mere fiat of the human will ....
"Goods, Chattels, Commodities, Wealth can be created out of absolute nothing
and decreated again into the absolute nothing from whence they came, to the utter
confusion of all the materialistic philosophers from Kapia to the present day and to
the first school of economists."
If this reasoning is true, then physics means nothing, and a few superior
minds-those capable of determining the need for new credit and those deserving of
8 Land Patent.!
 the lavish reward for creation of wealth out of nothing-are in fact prime movers, now
social drones. And the price paid for raw materials matters not at all.
"If we reasoned similarly in physics," commented Frederick Soddy, "we should
probably discover that weights possessed the property of levitation."
Fabian Societies have been unable -to make good their promise that they would
make people well. They said they would print money, and everyone would be pros-
perous. Why are all of the underdeveloped countries stiJJ underdeveloped, if it is
merely a matter of creating credit and printing money, bonds, bills, notes and other
certificates? In truth, our national earned capital was built from a virgin country. It
took generations, each adding annually to the gross value of raw material production,
one year on top of the last to bring on savings. These savings, which reflected a
holdback from consumption, built so many homes, so many churches, so many
highways, and so many capital improvements. In earlier times people actually waited
for the next crop to come in to finish a project, because they did not have the in-
strumentalities for borrowing from future earnings. However, the full requirement of
capital or savings are not generated if raw materials entering the cycle are not
monetized on par with wages and capital costs.
The missing element in everybody's thinking in the conventional economic set
seems to be cause. For some reason that escapes us, our economists cannot see a
causal relationship between raw materials entering the cycle and income at the na-
tional level. Most economists do what John R. Commons always said they did. They
pick up economic analysis somewhere in process. They become so removed from
foundation precepts, that they suffer the delusion of the British manufacturer who
was told during World War II: "Your factory has just been destroyed by Nazi
bombers," and he responded: "So what? It is insured."
The only sound way to get newly earned income into the system is not through
bookkeeping arrangments, tax offsets, cute little tricks in the financial system, but
through the production of new wealth times price per unit. That money does not have
to be repaid. The consistent way of developing income is through production of food
and fiber at parity. You have a broad distribution here, and it quickly enters into the
consumption cycle, so if you monetize raw materials at full parity, it does not matter
whether or not the Fed can create credit, because there will be very little need.
Two years after the Employment Act of 1946 was passed, the French economist Jac-
ques Reuff said it all: "Inflation does more than complicate the works of parliaments.
It makes them a laughing stock and discredits them." It, therefore, causes legislative
bodies to sacrifice freedom to soothe the indigestion caused by lack of par exchange
between farm and city, between section and nation, and nation and nation.

THE REAL LAWS

With or without human intervention, economics is subject to mathematical laws,
and this requires men to view the subject from the standpoint of physics and
mechanics. "Annual raw material production, in the main food and fuel energy, is
the power gear in our economic machine which at all times controls the volume and
velocity of industry and trade as finally expressed in total national dollar income,"
wrote Charles Ray, engineer, analyst, original thinker.
"Our annual total national earned income measured in dollars is limited to the
The Trail of Land Patents in the United States 9
 total dollars paid for our annual new crop ot raw materials ot au ktnas mump11ea oy
our current annual national trade turn. The increasing pattern of the trade turn is ob-
tained by dividing previous year's annual total national incomes . .. These annual
national trade and labor turns are mathematical corollaries of each other, and in-
crease constantly and permanently as the result of technological improvement in
farm, mine and factory.
"Let us make it clear here that the bus;'less man only legally employs labcr and
houses and services it with machines [capital investments], r"t he does not !':ire [pay]
labor, except as an agency. The various groups of labor in order of their impor-
tance-farm, mine, factory, trade, and service-through their respective production
and mutual consumption of each other's product, hire and pay each other. The initial
hiring and paying of all labor starts in the annual cycle with the farmer who as our
largest combined capitalist and worker hires himself, hence never lacks employment
or fails to produce. This initial farm-labor capital and income automatically
multiplies through the rest of the groups in our national economy, at predetermined
ratios. Basic agriculture, therefore, literally 'primes' our national economic pump an-
nual and may be said to hire all ensuing or subsequent labor in the whole. The only
exception is that of labor hired and paid by new capital investment in new buildings
and equipment, which only a prosperous agriculture can sustain. "
It was this last concept that Keynes and others seized upon during the 1930's,
because capital expansion took on the color of earned income-the kind turned by
raw material production-and satisfied those who created money at a profit. But as
Ray stated, debt could not be sustained by anything less than a pros-
perous agriculture.
STABILIZATION
The Founding Fathers must have understood that proposition as it has been rarely
understood in the last century, and they made secure that understanding by writing
Subsection 5 of Section 8 into the U.S. Constitution. That subsection authorized Con-
gress to "coin the money and regulate the value thereof." There was no presumption
that a free international market would fix the value of gold and silver at a properly
regulated value. This remained a task for Congress, and was not one that could be
delegated to an agency subservient to a group of international bankers. The constitu-
tional mandate to regulate the value of money was obeyed by Congress-as Congress
had the wisdom to see its duty-when lawmakers passed tariff laws, monetized gold
and silver at fixed ratios, and finally invoked a stabilization measure during World
War II. The last procedure underwrote government's finest hour.
It was reasoned by some, but not all, that real money was the commodity man took
from nature, the energy he harvested from the sun and sea and coal and oil from
Precambrian deposits. This energy had to be turned into money so that it could be
spent without cumbersome complications. All that was required was a simple for-
mula, one that made it possible for the several sectors of the economy to consume the
production each had accounted for. It was reasoned that costs in harvesting "new
money" were all inputs from other sectors of the economy. Therefore, par prices for
farm production were really set by others-not by farmers.
The War Stabilization Act of 1942 and the Steagall Amendment in effect monetiz-
ed farm commodities-chiefly storable commodities, but also certain perishable com-
10 Land Patents
 modities-at parity with the rest of the economy. The result was a decade of par
operation for the United States. During this period no great surpluses were built up
by domestic production. Debt did not run rampant. Farmers enjoyed parity prices at
the marketplace and government balanced the only budgets between the Depression
of the 1930s and the present, except a couple that were balanced with statistical
manipulation. The nation also enjoyed full employment. Full parity via the in-
strumentality of monetized raw materials costs the government nothing-no more
than would gold monetized by governme:it action. To understand this reality, it must
be reiterated that banks nowadays create loans out of thin air, and therefore create
checkbook currency the same way. On balance, these loans cannot be repaid because
interest doubles and redoubles them every few years. When mathematical ambition
and physical possibility part company, the entire community is required to pay for the
folly of those who reject the laws of physics.
In Storage and Stability, Benjamin Graham argued for the establishment of a new
money, a commodity dollar, that could circulate the same as if it were a silver dollar,
Federal Reserve Note, United States Note or National Bank Note. Let Gresham's law
decide which money was best, Graham suggested. Under the plan, some 20 basic
commodities-everything from steel ingots to wheat-were to be supported by the
government. "The only expense connected with instituting and maintaining the
monetary storage system is the cost of storing the various commodities in the unit,"
wrote Graham. "The actual acquisition of the commodities does not involve any ex-
pense or entail any annual interest charges, for they pay for themselves by qualifying
as the backing for currency-in the same way as our gold and silver reserves have
always done ."
At parity, full monetization of raw materials thus became an interest-free way of
creating money, with only the physical storage cost as a deficit. Storing gold and silver
had never posed much of a problem. Storing wheat and zinc was only slightly more
difficult. In any case, the scheme made money meaningful to people.
With the homestead unavailable for bank and lending agency takeover, and with
personal bankruptcy available every seven years, free men theoretically could hold off
the tentacles of tyranny forever .
Over the past 45 years, Americans have slept soundly. The courts of equity have
been used to regiment men, resources and commerce based on the maxim that "to
trade with a merchant is to become a merchant," and this makes every individual
liable to trial by judge (not jury) on the mere fact that each individual processes and
consumes, and this has been translated to include everything, even eating and giving
birth-all franchisable activities. Under this perverted interpretation of law, there is
never a controversy that needs to be tried by jury. But the law is the law-and the land
patent is conveyance of title by law. Thus by 1820, two fantastic safeguards had sur-
faced to protect the freedoms of Americans-a regulated value for money, and pro-
tection from the money lenders-and their contrived inflations and depressions-for
owners of patented land.
The Founding Fathers entertained a theory of history quite different from any
entertained by intellectuals before or since . They wanted broad-spectrum distribution
of land, and absolute control of land by the people. The people, in turn, were to be
protected from exploiters of every stripe by a money supply regulated by Congress,
not bankers.
The Trail of Land Patents in the United States 11
 This thinking ran head-on into a philosophy best stated by Kenneth E. Boulding,
one of America's great gut-agriculture seers: "Civilization is what happens in cities,
and the city is dependent on there being a surplus from the food producer and on
some existing organization which can take it away from him. With this food surplus,
the political organization feeds kings, priests, armies, architects and builders, and
the city comes into being. Political science in its earliest form is the knowledge of how
to take food surplus away from the food producer without giving him very much in
return."
This last public policy has a sorrowful history. The idea that government can take
away the benefits of par economy with impunity has run the length of our 200 year
history. Only rarely have we seen flashes of brilliance. If we buy the rails from
England, Lincoln told his advisers, we will have the rails, but England will have our
money. If we make the rails here, we will have both the rails and the money.
The powers that be-the international business houses-have always believed low
raw material costs in one land and high markets in another constituted the royal road
to greatest profits. These same houses have always relied on a great spread between
costs and sales domestically. Few have realh:ed that business principles are not the
same as principles governing an economy, and fewer still now realize that principles
governing an economy ultimately govern business. In the U.S., business tried to cir-
cumvent the par economy with cheap Jabot from Europe and the Orient, and finally
labor got an immigration law. International business tried to circumvent the
American cost level with cheap imports, and in the 1920s Congress passed the
Fordney-McCumber tariff bill so that cheap imports could not rupture the American
price structure. There was a farm bloc in those days, and political pressure was
brought to bear so that a McNary-Haugen bill to preserve farm parity could be pass-
ed. It got a veto from Silent Calvin Coolidge. As is well known, the policies from 1890
to 1930 finally gave u.s our Great Depression. ·

THE PARITY REQUIREMENT

It was during the "bankruptcy" days of the 1920s and 1930s that great thinkers
gave birth to the parity concept, the idea that agricultural production must exchange
on par with the rest of the economy. Ultimately only earnings could make secure the
right to land, it being understood that a loan was only a prelude to the forced sale. It
was also understood that parity is a requirement of any economy based on division of
labor. To understand this, reason with us for a moment. If two individuals exchange
the production accounted for by division of labor, and one has a 10% advantage in
each transaction, the favored party will have most of the money or property, and the
second will be near bankrupt or bankrupt after the tenth transaction.
In the late 1930s, Congress ordered the parity concept computed. We cannot tell
why, but from the very first the U.S. Department of Agriculture operated so as to con-
fuse and discredit the parity concept. Because of ignorance, or thoroughly informed
self-interest, government functionaries started computing parity for over 150 com-
modities one at a time. Parity was questioned routinely by government economists. As
a result the Farm Act of 1938 put a 70% ceiling on parity for farmers if the crop year
delivered 70% of a so-called normal crop . Since production times price equals in-
come, 70% of a full production times 70% of a parity price meant distribution. It is
12 Land l'atent.s
 also the point of our maximum need for forei~n goods. True, agriculture had those
dirt roads then, those awkward headers , no electricity, but industry was equally
primitive. Technology is like a giant milk tank. Added to the pool of technology , it
flows evenly to all parts of the tank. As the flow improves into an economy, more peo-
ple are released into service industries-teaching, research, government-but these
service industries cannot be sustained without parity for agricultural raw materials
unless there is unsound debt expansion. Computation of parity depends on little more
than a good base year-one in which there is no import invasion, no general im-
balance in the economy-a year in which basic storable farm commodities are on par
with wages and capital costs.
The 1910-1914 era was a fair base period. The 1946-1950 period could have provid-
ed an equally valid base period of 100. Computations on the price of farm com-
modities come within a penny, figured on either base period.
But something happened in 1946-something that put American agriculture on a
collison course with bankruptcy. Harry S. Truman was president then. He had in-
herited the Stability Act of 1942 and the Steagall Amendment. This legislation had
the effect of putting a 90% of parity price on most farm crops at harvest. Parity of
90% at harvest on storable commodities turned out to be very close to 100% with
storage added, and storage is properly the farmer's function. There was reasoning
behind this stabilization measure. Senator Elmer Thomas of Oklahoma stated it best
when he reported back on a farm bill for parity-one geared to stabilizing the
dollar-and asked the measure be assigned to the Committee on Banking and Cur-
rency, its logical base for consideration. After all, he said, it was the job of Congress
to regulate the value of money. But there was a war on then, and the establishment
was in danger. When Mr. Truman took over, the war was nearly over. In 1946 :1e
could and did take no less than four steps that haunt us now.
1. He signed a measure to make permanent the temporary withholding act of
WWII. This assured us all that we could expect continued growth of government and
unending funds for bureau expansion and regimentation of men, resources and
capital.
2. He supported the Administrative Procedures Act. This took off the hands of
Congress the unhandy business of writing laws in detail. They could now write enabl-
ing 1.egislation and hand off to bureaucrats the right to issue laws by decree, not just
by the page, but by the pound.
3. He supported and signed the Employment Act of 1946. This made it public
policy to secure full employment for industrial America, largely at the expense of
agriculture .
4. He did-on the last day of 1946-declare the war terminated. The Stabilization
Act had been written so that it would expire two years after the end of the war,
whether ended by Congress or by presidential proclamation. Had Mr. Truman waited
until the next morning, agricultu re would have enjoyed parity another year, and this
would have put the terminal date for parity into an off election year.
The Employment Act of 1946 set up a Council of Economic Advisers. Edwin
Nourse was the first chief, and he was replaced by his deputy, Leon Keyserling. At
first there was a little talk of structural balance in the Economic Reports of the Presi-
d ent, but soon this waned , and the language became the language of policy papers
Th e Trail of Land Pc.tents in the United States 13
out of Committee for Economic Development, the Council on Foreign Relations, and
pronouncements out of what Theodore White called New York's Perfumed Stockade.
The year 1948 arrived all too soon. There was great debate in Congress that year,
and at 5:00 a.m. on the morning the Republican Convention met in Philadelphia to
nominate Thomas Dewey, conferees reported out a farm bill. It contained a strange
clause, one that escaped much attention until recently. The 1948 Act provided for
base periods to be moved forward every decade. And this happened. Wheh 1957-1959
became base year 100-farmers lost 49 cents off a bushel of corn with a lead pencil in
the computations. The base period is now 1977 = 100, and in a few years it will be
1987. Farmers should look at how they fare with 1979 as 100, or full parity, and
agriculture's shares computed at something less than 100 off that base period.

THE CONSEQUENCES
One can date the declining rate of profit for industry from the loss of farm parity.
You can watch liquidity slide right out of the banks as of that date. Former USDA
Secretary Charles Brannan's plans for a relief check instead of a price for agriculture
didn't help, except to pace the rate of farm bankruptcy so it wouldn't happen too fast.
The programs and the promises have not helped. Over three decades the indepen-
dent operator has been made to fall. First, he was told to get more efficient, to get big-
ger-higher land values would carry the day. And all the while thousands failed, not
through any fault of their own, but because public policy required it. The crisis has
now been created, and farmers have to answer it.
First, the bleeding in the country has to stop. The mortgage foreclosures must
cease. And the law provides a mechanism.
After that par exchange must be made public policy. There is no way solvency can
return to the U.S. without a convulsion.
If we have reached the point of no return, doesn't this in effect annihilate the con-
cept of parity? No. The economy will slide into a depression. This cannot be stopped.
It will wash out a lot of debt and set the stage for recovery. But there can be no real
recovery without parity. That's the lesson history has taught. In fact, 1980 was prob-
ably the point of no return because the debt structure at that point could no longer be
adjusted to a sustainable basis. Borrowings were outpacing net savings. By 1983 bor-
rowings took approximately 100% of national net savings. Only farm parity can start
undoing the damage accomplished over the last 30 years. Unfortunately, in the words
of Dr. John L. King, a Wharton graduate and publisher of Money Matters, "the
establishment economics that is taught in universities, proliferated in journals,
regurgitated in councils of government, with all of its mountains of published output,
has not advanced our capacity to control our economy beyond what it was in the late
1930s." In other words, our leaders have not had the wit to learn the few lessons con-
tained in the concept of parity.
The policies that have prevailed between 1952 and the present have brought on a
crisis so staggering it will likely preside over fantastic adjustments in our political and
institutional arrangements. We would say, if we could, that we see a cloud hanging
over the democracy no bigger than the palm of a hand. Unfortunately we cannot do
this. The cloud is a massive thunderhead. Nothing can turn it aside except perhaps
the Supreme Court of the land. Thus our interest in the iron-clad laws and public
14 Land Patents
 policy of the Founding Fathers. The brief that follows will help attorneys who take up
the fight. This does not suggest that the workers who helped with the brief are oracles.
No one can tell whether the high court will, one day, ratify the findings expressed
herein, or whether some new rationale will be constructed to give the lender standing
superior to the holder of patented land. All that can be stated for certain at this time
is that the record is clear, and if logic prevails, then the land patent is worth more
than its weight in gold. It is worth its weight in freedom, and the freedom of our peo-
ple depends on it in more ways than words can express.
Parity for agriculture would secure parity for labor by bringing into focus the prob-
lem of import invasion . As it stands now, cheap goods flow to the high markets of the
world. This import traffic has the same effect as importing cheap labor, and
disemploys the American labor force . Thus the requirements of a parity equation for
agriculture also make mandatory tariffs sufficient to make imports enter U.S. trade
channels on par with goods produced at the American wage scale. Parity and struc-
tural balance cannot pertain only to agriculture. They must govern all sectors of the
American economy, labor included, if full employment and a secure food lifeline are
to be maintained. The impact of import invasion and resultant unemployment on the
American labor force is substantial. Massachusetts Institute of Technology has
estimated that approximately 25,000 jobs are eliminated for each $1 billion of direct
private U.S. foreign investment. This would suggest that 6 million American jobs
have been handed over to low cost employees the world over, chiefly Asia. Workers
thus unemployed pay out in more than lost jobs. A Johns Hopkins professor has com-
puted that a 1 % increase in unemployment rates increases 36,887 more deaths, 4,227
first admissions to mental hospitals and 3,340 commitments to prisons. In 1980 U.S.
firms increased their investments abroad by $8.2 billion (to a new total of $52. 7
billion). Wages in some of these countries are SO cents an hour. Over 238,000 people
were employed in the manufacture of electric and electronic equipment in low wage
countries. Low wages and even lower farm prices have resulted in out-migration from
farms in these countries. As a consequence, there has been a demand for farm crop
exports from the U.S. at low prices to accommodate the wishes of the multinational
exploiters of labor and agriculture.
Parity is not just something for agriculture. There has to be a parity for labor, for
business, for interest. This is what is meant by structural balance. For all practical
purposes, an economy based on structural balance is one based on par exchange. Un-
fortunately the economic managers now refuse to evaluate this requirement of the ex-
change economy. For the time being , the interest mechanism is being used to fly
another mini-cycle across the economic landscape. This distortion of logic invaded
every area of society. As we go to press, the Supreme Court has ruled that certain Sav-
ings and Loan Associations could force payment of a mortgage before a housing unit
could be sold. This in effect forces higher interest rates on buyers when in fact they
should be able to avail themselves of existing contract rates. This ruling is not based
on law, but on economic necessity decreed by the economic game plan if inflation is to
be kept going. This distortion in the thinking available in every area of government
simply serves as an insurance policy for termination of the 200 year old democratic ex-
periment called America . If par exchange is not allowed to intervene, if structural
balance is not achieved as a consequence of r ari ty , then the new era of history will be
Th e Trail of Land Patents in th e United States 15
 quite different from the democracy American s have known. The point here is that
parity and only parity can answer the requirements of the Constitution--"to coin the
money and regulate the value thereof."
Are the economists really that out of tune with requirements of the parity concept?
Most of them are. Back in 1946 they had a contest in the American Farm Economic
Association on the subject-A Price Policy for Agriculture Consistent with Economic
Propress that will Promote Adequate and More Stable Income from Farming. This
one drew 317 papers. Of the 18 winners, fully 100% agreed that 1910-1914 as a parity
base period represents a grossly distorted pattern. It ignored shifts in population,
technology, on and on, so they argued. Not one of the professors accepted the idea of
par for agriculture. They didn't all agree on one thing-whether there ought to be a
relief check over and above what international commodity prices allowed or whether
farmers ought to take it on the chin all the way. Lawrence Simerl suggested a loan
rate of 55 to 75% of parity. This way agriculture could absorb a lot of shock for the
rest of the economy. He wanted a 1935-1939 base period for "equals 100." One pro-
fessor came up with the Brannan Plan in the contest-a relief check for agriculture .
Not one of the economists understood that this nation got 1 % of unemployment for
each 1 % farm prices remained below parity during the Depression years. Not one
understood that for every dollar agricultural commodities were underpriced, the na-
tion lost S7.00 of national income.
The common sense public thinks it is to its advantage to have low food prices. At
least six administrations have agreed, and for this reason the nation has a cheap food
policy. Forcing farmers to operate at less than parity continues to bankrupt farmers,
but is it really of benefit to consumers. The answer has to be "No."
The housewife pays a terrible tariff for the fiction of low food prices. The family
spent about 25 cents of its dollar to feed the family in the 1946-1950 era. At that time
taxes took about 25 cents of the dollar. Today it takes about 16 plus cents to feed the
family. But because the farmer has not been getting paid, the exchange equation has
faltered. This has prompted the government to cover up by structuring all sorts of
agencies to employ the people, all sorts of relief programs. Because the farmer was
short-changed, it has taken debt and war spending and fear of communist aggression
and foreign give-aways to sustain the prosperity. As a consequence it takes 44 to 45
cents of the dollar to feed the tax collector. Now 16 cents for food and 45 cents for the
tax collector adds up to 61 cents, not the SO cents when food cost a bit more. If there
isn't proper division of income between different sectors, then the sectors can't con-
sume each others' production. Generally, when there is farm parity, there are
surpluses in the treasuries of taxing units, and there is liquidity in the banks. We're
told that if farmers get a parity price it means inflation-and it may mean higher
prices temporarily as the economy adjusts itself. Farmers got parity prices briefly in
the 1973-1974 era because of the Russian grain deal. This meant about 10% infla-
tion, but remember there were other factors. There was a well choreographed oil
crisis. The Fed kept on pumping money into the economy the same as if farm prices
had not climbed. One thing is certain. As debt creation continues, public and private
debt will double each decade, as it has s;nce 1950. This has meant a public and
private debt of $4 trillion by 1980, and wil! mean $8 to 12 trillion by 1990. Congress
may think it has voted stability for the Social Security System, but this is simply
16 Land Patents
 whistling Dixie. President Carter could have balanced the budget if he got behind
farm parity, but a balanced budget without parity raw materials was impossible.
Admittedly, there are questions about parity-albeit none that the record cannot
explain. Businessmen often fail to understand parity. Many believe that all gain is not
really earned, but achieved at the expense of others, and they therefore believe that in
denying parity to agriculture greater gain will be achieved as business profits. They
forget that business principles are not economic principles-and that economic prin-
ciples requiring par exchange ultimately govern over business principles one way or
another. Par exchange is a natural economic requirement. The only way to conquer a
natural law is to obey it. Some farmers believe that if grain prices are at parity, the
cattle rancher or feedlot farmer gets hurt. They fail to realize that parity for the six or
seven basic crops that constitute 75% of the harvested acres has a self-adjusting effect
on the rest of agriculture without regimentation of men, capital or production
resources. Cattlemen get in a bind not because grain prices go up, but because they go
down. Demand dries up long before the market is saturated. Cattlemen took their
whipping in 1977, not 1974. Moreover, the cattle situation was distorted by an import
invasion five years earlier. Approximately 1.3 billion pounds of red meats, processed
and boned, were imported annually during the 1970s. Much of this was produced on
$1.00 an acre land. Each pound displaced seven pounds of grain on the average.
Without this import invasion farmers would have to produce an additional 3 million
1,000 pound slaughter animals . This would require an additional cow herd of approx-
imately 3,500,000 head, plus an additional 100,000 bulls. It would mean the need for
an additional 1 million mother cows to produce those animals. The cowman cannot
be hurt by parity grain prices. He can only be hurt by a lack of farm parity because a
lack of parity authors poverty and makes it impossible for the population to eat prop-
erly. One key to low farm prices has been dislocation between farm commodities.
Such dislocations disappear promptly once the basic crops get to and hold at parity.
Some people argue that parity prices for agriculture create unmanageable surpluses,
when in fact the opposite is true. In fact, surpluses are not possible when farm raw
materials are priced at parity.Full parity prices set up the credits with which the
population can consume the production. The only time there aren't surpluses is when
prices are at parity for farm raw materials. The big surpluses have all been piled up
when prices were at less than parity. At less than parity the income needed to con-
sume the production is not created. Supply without effective demand cannot be con-
sumed. People find it possible to consume steak whenever raw farm commodities are
at parity. This is because a flush of earned income is churning through the economy.
The final question remains. How can the farmer get parity? He can only get it with
the aid of Congress. Congress should pass a law that mandates payment of parity
prices as raw commodities enter trade channels. This is not unlike a minimum wage
law. It simply would keep the trades from stealing farm production at the tailgate. It
would not be necessary to regulate all crops. A computed parity on six or seven
storable commodities that account for 70 to 75% of the harvested acres would do the
job. Crops that spoil quickly-vegetables, certain fruits-could not be used in any
formula. Such a base would permit the play of the market to function for minor com-
modities, keeping them very close to parity. Parity must be maintained at the market.
This is not too difficult . Kansas requires all whiskey makers to sell Kansas
The Trail of Land Patents in the United States 17
 wholesalers at the same floor price they charge all other whole'.:alers in the nation. The
primary suppliers post prices at parity. The state goes even further. It r~quires
retailers to add a certain markup. This is done to maintain trade stability even though
the Statistical Abstract gives figures to indicate that never in history has there been as
much whiskey in the warehouses. If Kansas and the other 49 states can require each
pint of whiskey entering trade channels to have a parity price, then surely the powPr-
ful federal government can pass a law to keep the trades from literally stealing raw
farm production off the farmer's tailgate.
A loan program or subsidy cannot serve the parity requirement because the loan
program concept embodies a fundamental error. It permits buying power to be
brought into existence and farmers to spend that money without the goods actually
moving through the system. When the so-called stored surplus is eventually sold into
trade channels, the farmer has already been paid for it, and he has spent the money.
All he now gets in payment for the surplus in a loan program when it is sold is the
price difference between the loan received and the market price at that time. Under a
sound parity program, the farmer must be paid in full parity for production only
when it enters the marketplace, and not one minute earlier. The loan system is a fun-
damental error because the farmer gets a loan price but in the end gives it away
through inflation, or he creates stored inventories (because of distorted and shorted
buying power) that hang over the economy and ultimately destroy the parity program.
It can be fairly stated that government programs have been used to insure cheap farm
prices through loans and forced perpetual expansion of debt, mounting foreclosures,
and these programs have at the same time assured built-in inflation. Parity can apply
only to commodities that can be used. This is why the price must come from the
marketplace at the time of the sale, not from loans or from subsidy payments. Only by
passing through the market at full parity can farm crops generate a multiplier effect.
A government that can set air fares, rail rates and prices on a pint of whiskey can also
name the price at which basic raw farm commodities can enter trade channels. As for
the subsidy concept, it represents little more than frustration economics-the tawdry
business of keeping farm prices at a world level and giving a relief check to farmers to
pace the rate of farm bankruptcy. The idea of the subsidy is to throw the farmer a
bone so he won't get too restless for government comfort while his land is being taken
away from him.
The present type programs all were brought into being under the theory that it
would be better to give the farmer a relief check to keep him satisifed politically than
to permit him a proper price at the market. Farmers who understand economics are
not asking for loans or supports. They are asking for parity at the marketplace. It is
realized that to pay for exports of manufactured goods, financiers import many prod-
ucts from their acquired sources of production in other lands. These imports displace
our own farm crops enough to create a spot surplus. Yet farm prices could be main-
tained by maintaining a price balance between six or seven of our basic crops-com,
wheat, barley, rye, soybeans, cotton, the foundation of all farm production-and the
prices of finished goods as reflected in some normal period.

18 Land Patents
 What the U .S. economy really needs is a very substantial surge in national income which
will provide a new tax base of at least SI trillion . It would require new gross sales approx-
imately SS trillion at retail to accomplish this, and all sectors would have to participate
equitably to have it work best. And it should happen very soon, if possible, within the next
12 months' time , [wrote Vince Rossiter, Nebraska bc1nker .J
If we could achieve a new tax base of S 1 trill:on within a year, the economic effects would
be startling and very positive . ..
1. The 23 % share which would accrue to the federal government wo .. ;j yield S230 billion
of new tax revenue.
2. The federal budget could be balanced, and further cuts in entitlements and other
critical budi;iet items could be avoided .
3. Solvency would be substantially restored to the Social Security system by increased
taxes paid by reemployed workers .
4. Unemployment would decline substantially, perhaps 30% or more.
With higher earnings, the private sector would require less credit, the federal govern-
ment credit requirements would cease, and interest rates would decline dramatically.
To understand the reality of what I suggest here one only has to review what happened to
national income of the U.S. economy from 1940 to and including 1943. Here you will re-
discover a very remarkable period of economic growth, which both of us witnessed in our
lifetime.
Total national income increased more than 110% during the period. All sectors par-
ticipated fully and "equitably." It was this kind of an economic base that permitted the
United States to earn enough money, had the tcl:r.es been levied to do it, to pay cash for the
entire cost of WWII and the cost of reconversion to a peacetime economy following the war.
Plus, it was possible to contribute billions of dollars to our allies and former enemies to help
them restore their economies in foreign countries. We were able to have balanced budgets
during the Truman years because we had wisely provided laws, regulations and economic
restraints that assured economic equilibrium for ten solid years from 1942 to the close of
1952. It was a managed system which successfully avoided inflation and depression until it
was abandoned in 1952. During this period we preserved the benefits of the United States
economy for the primary enjoyment of our own citizens, our own labor force, our own
financial system, and our business and agricultural entities. We were so prosperous and
solvent in 1945 that the commercial banks of the nation couldn't find borrowers among all
of the individuals, partnerships and corporations in the nation, for more than 17.6 cents
out of every dollar of deposits. The Federal Reserve discount rate was 1 % per annum, and
short-term U.S. Treasury bills were yielding less than 1 % per annum interest to the in-
vestor.

The United States has been a nation for 208 years. In that time we have constructed
in excess of $6 trillion public and private debt, $5.5 trillion of which has been built up
during the last 32 years. During the same 32 years we have dislocated $3. 9 trillion of
- ; (?
cumulative profits earned by the private enterprise sectors enumerated on page 10.
The biggest share of that dislocation has been endured by agriculture. The dislocation
of $3. 9 trillion of earned income and the unjustifiable cost of $1.6 trillion of excessive
interest total of $5.5 trillion, or approximately the amount of the expansion of public
and private debt in the same 32 years.
It would have been anatomically impossible for this to have happened had farm in-
come maintained a parity level. But it has happened, and there is no way out. The re-
maining question is whether the U.S. government via client corporations will again
take control of all the land with absolute title , or whether the wisdom of the Founding
Fathers will prevail.
The land patent is waiting in the wings for an answer.
The Trail of Land Patents in th e United States 19
-- ..... - ... -
 MEMORANDUM OF LAW

HISTORY , FORCE AND EFFECT

SECTION 1

ALLODIAL -v- FEUDAL TITLES

IN AMERICA TODAY, there is a phenomenon that has not been experienced since the
mid-1930s. That phenomenon is the increasingly rising number of foreclosures, both
in the rural sector and in the cities ..This phenomenon is occurring because of the in-
ability of the debtor to pay the creditor the necessary interest and principle on a rising
debt load that is expanding across the country. As a result of this phenomenon, the
debJors are _attempting_to discov~r _an _avenue. thl:lt _may helE_stave off the_inevitable
foreclosure. One SU£~ avenue that is. pe>th_p9_t_e nt 3:114 p~9p~r as a defense is the lan_g
p~_t_~n_t,_or f~~-si!Ilple.~i~.lf?. !o t~e. ll:l~d, and the Congre~~~-~~l ..~t~_~t ~~t-~£~ITIQanies
~he patent. In order to properly evaluate the p-citent's power in any given situation, it is
necessary to understand what a patent is , why it was created, how it was created, and
what existed before the patent, particularly in common law England. These questions
must be answered in order to effectively understand the association between the
government, the land , and the people.
First, to understand what existed before land patents-since it is imperative to
understand why the patent was created-the best approach is a study of the converse,
or common law English land titles. This approach allows us to fully understand what
we are presently supposed to have by way of actual ownership of land .
In England, at least until the mid-1600s, and arguably until William Blackstone's
time in the mid-1700s, property was exclusively owned by the king. In arbitrary
governments , the title is held by and springs from the supreme head-be he the em-
peror, king , potentate, or by whatever name he is known. [McConnell v. Wilcox, 1
Scam. (Ill.) 344, 367, (1837).J The king was the true and complete owner, giving him
the authority to take and grant the land in his kingdom to people who either lost or
gained his favor. The authority to take the land may have required a justifiable
reason, but such a reason could conceivably have been fabricated by the king, leaving
the disseised former holder of the land wondering what it was that had brought the
king's wrath to bear upon him. At the same time the beneficiary of such a gift, while
Mem orandum of Law, History, Force & Effect of the Land Parent 21
 undoubtedly knowing the circumstances behind such a gift, may still not have known
how the facts were discovered, and not knowing how such facts occurred may have
been left to wonder if the same fate awaited him if he ever fell into disfavor with the
king.
The king's gifts were called fiefs, a fief being the same as a feud, which is described
as an estate in land held of a superior on condition of rendering him services. [2
Blackstone's Commentaries, p. 105.J It is also described as an inheritable right to the
use and occupation of lands, held on condition of rendering services to the lord or
proprietor, who himself retains the ownership in the lands. [Black 's Law Dictionary,
4th ed., p. 748 (1968).J Thus, the people had land they occupied, devised, inherited,
alienated, or disposed of as they saw fit, so long as they remained in favor with the
king. [F.L. Ganshof, Feudalism, p. 113 (1964).) "This holding of lands under
another was called a tenure, and was not limited to the relation of the first or para-
mount lord and vassal, but extended to those to whom such vassal, within the rules of
feudal law, may have parted out his own feud to his own vassals, whereby he became
the mesne lord between his vassals and his own or lord paramount. Those who held
directly of the king were called his 'tenants in ... chief." (1 £. Washburn, Treatise
on The American Law of Real Property, Ch. II, §58, p. 42 (6th ed. 1902).] In this
manner, the lands which had been granted out to the barons-principal lands-were
again subdivided, and granted by them to subfeudatories to be held of themselves.
[Id., §65, p. 44.] The size of the gift of the land could vary from a few acres to
thousands of acres depending on the power and prestige of the lord. [See supra Gans·
hof, at 113.] The fiefs were built in the same manner as a pyramid, with the king, the
true owner of the land, being at the top, and from the bottom up there existed a
system of small to medium sized, to large to larger sized estates in which the persons
directly beneath one estate owed homage to the lord of that estate as well as to the
king. [Id. at 114.] At the lowest level of this pyramid through at least the 14th and
15th centuries existed the serfs or villains; the class of people that had no rights and
were recognized as nothing more than .real property. [F. Goodwin, Treatise on the
Law of Real Property, Ch. 1, p. 10 (1905).] This system of hierarchical land holdings
required an elaborate system of payment. These fiefs to the land might be recompens-
ed in any number of ways.
One of the more common types of fiefs, or the payment of a rent or obligation to
perform rural labor upon the lord's lands known as socage, was the crop's fief. [Id. at
8.J Under this type of fief a certain portion of the grain harvested each year would im-
mediately be turned over to the lord above that particular fief even before the shares
for the lower lords and then serfs of the fief would be distributed. A more interesting
type of fief for purposes of this memorandum was the money fief. In most cases, the
source of money was not specified, and the payment was simply made from the
fiefholder's treasury, but the fief might also consist of a fixed revenue to be paid from
a definite source in annual payments in order for the tenant owner of the fief to be
able to remain on the property. [Gilsebert of Mons, Chronique, cc. 69 and 115, pp.
109, 175 (ed. Vanderkindere).]
The title held by such tenant-owners over their land was described as a fee simple
absolute. "Fee simple, Fee commeth of the French fief, i.e., praedium beneficiarium,
and legally signifieth inheritance as our author himself hereafter expoundeth it. And
22 Land Parents
 simple is added, for that it is descendible to his heirs generally, that is, simply,
without restraint to the heirs of his body, or the like, Feodum est quod quis tenet ex
quacunque causa sive sit tenementum sive redditus, etc . In Domesday, it is called
feudom." [Littleton, Tenures , Sec. 1b, Fee Simple . ] In section 11, fee simple is
described as the largest form of inheritance . [Id.] In modern English tenures, the
termfee signifies an inheritable estate, being the highest and rn0st extensive interest
the common man or noble, other than the king, could have in the feudal system. [2
Blackstone's Commentaries, p. 106.J Thus, the term Jee simple absolute in common
Jaw England denotes the most and best title a person could have as long as the king
allowed him to retain possession of (own) the land. It has been commented that the
basis of English land law is the ownership of all realty by the sovereign. From the
crown, all titles flow. The original and true meaning of the word "fee" and therefore
fee simple absolute is the same as fief or feud, this being in contradistinction to the
cerm "allodium" which means or is defined as a man's own land, which he possesses
merely in his own right, without owing any rent or service to any superior. [Wendell v.
Crandall, 1 N.Y. 491 (1848).) Therefore in common law England practically every-
body who was allowed to retain land, had the type of fee simple absolute often used or
defined by courts, a fee simple that grants or gives the occupier to have at that time.
The term became a synonym with the supposed ownership of land under the feudal
.system of England at common law. Thus, even though the word absolute was attach-
ed to the fee simple, it merely denoted the entire estate that could be assigned or pass-
ed to heirs, and the fee being the operative word; fee simple absolute dealt with the
entire fief and its devisability , alienability, and inheritability. [Friedman v. Steiner,
107 Ill. 131 (1883) .) If a fee simple absolute in common law England denoted or was
synonymous with only as much title as the king allowed his barons to possess, then
what did the king have by way of a title?
The King of England held ownership of land under a different title and with far
a:_eater powers than any of his subjects. Though the people of England held fee simple
1
titles to their land, the king actually owned all the land in England through his
) allodial title, and though all the land was in the feudal system, none of the fee simple
/ ti.ties were of equal weight and dignity with the king's title, the land always remaining
1Blodial in favor of the king. [Gilsbert of Mons, Chronique, ch. 43, p. 75 (ed.
Vanderkindere).] Thus it is relatively easy to deduce that allodial lands and titles are
the highest form of )ands and tjt)es known tQ_ common law. An estate of inheritance
~ithout condition, belonging to the owner, and alienable by him, transmissable to his
~eirs absolutely and simply, is an absolute estate in perpetuity and the largest possibk
estate a man can have, being in fact allodial in its nature. [Stanton v. Sullivan, 63
R.I. 216, 7 A. 696 (1839).) "The original meaning of a perpetuity is an inalieoab1'.
\ndestructible interest." [Bouvier's Law Dictionary, Volume III, p. 2570 (1914).J The
king had such a title in land. As such, during the classical feudalistic period of com-
mon law England, the king answered to n.J one concerning the land. Allodial titles,
being held by sovereigns, and being full and complete titles, allowed the King of
England to own and control the entire country in the form of one large estate belong-
ing to the Crown. Allodial estates owned by individuals exercising full and complete
ownership , on the other hand, existed only to a limited extent in the County of Kent.
In summary of common law England: (1) the king was the only person (sovereign)
Memorandum of Law. History , Force & Effect of the Land Patent 23
 to hold complete and full title to land (allodial title); (2) the people who maintained
estates of land, (either called manors or fiefs), held title by fee simple absolute, (3)
this fee simple absolute provided the means by which the "supposed" owner could
devise, alienate , or pass by inheritance the estates of land (manors or fiefs); (4) this
fee simple absolute in feudal England, being not the full title, did not protect the
"owner" if the king found disfavor with the "owner," (5) the "owner" therefore had
to pay '.' type of homage to the king or a higher baron each year to discharge the
obligation of his fief, (6) this homage of his fief could take the form of a revenue or
tax, an amount of grain, or a set and perman..:nt amount of money, (7) and therefore
as long as the "owner" of the fief in fee simple absolute paid homage to the king or
sovereign, who held the entire country under an allodial title, then the "owner" could
remain on the property with full rights to sell, devise, or pass it by inheritance as if the
property were really his.

SECTION II

LAND OWNERSHIP IN AMERICA TODAY

THE AMERICAN FEUDALISTIC SOCIETY

THE PRIVATE OWNERSHIP OF LAND in America is one of those rights people have pro-
claimed to be essential in maintaining this republic. The necessary question in dis-
cussing this topic however, is whether ownership of land in America today really is a
true and complete ownership of land under an allodial concept, or is it something
much different. In other words, are we living in an actual allodial freehold or are we
. living in an updated version of feudalistic com'llon law. The answer is crucial in deter-
mining what rights we have in the protection of our realty against improper seizures
and incumbrances by our government and creditors. The answer appears to be ex-
tremely clear upon proper reflection of our rights when payments are missed on mort-
gages, or taxes, for whatever reason, are not paid. If mortgage payments are missed
or taxes are not paid, we actually fall into disfavor with the parties who have the
power, and these powers through court proceedings or otherwise, take our land as a
penalty. When one understands if he is unable to perform as the government or his
creditors request and for such failures of performance his land can be forfeited, then
he can begin to understand exactly what type of land ownership system controls his
life, and he should recognize the inherent unjustness of such constitutional violations.
The American based system of land ownership today consists of three key require-
ments. These three are the warranty deed or some other type of deed purporting to
convey ownership of land, title abstracts to chronologically follow the development of
these different types of deeds to a piece of prr;,erty, and title insurance to protect the
ownership of that land. These three ingredients must work together to ensure a sys-
tematic and orderly conveyance of a piece of property. None of these three by itself
24 Land PatentJ
 (/
'y
(./

can act to completely convey possession of the land from one person to another. At
least two of the three are always deemed necessary to adequately satisfy the legal
system and real estate agents that the title to the property has been placed in the
hands of the purchaser, and often-times all three are necessary to properly pass the
ownership of the land to the purchaser. Yet does the absolute title and therefore the
ownership of the land really pass from the seller to purchaser with the use of any one )
of these three instruments or in any combination thereof? None of the three by itself
passes the absolute or allodial title to the land . the system of land ownership America
originally operated under, and even combined all three can not convey this absolute
type of ownership. What then is the function of these three instruments that are used
in land conveyances and what type of title is conveyed by the three? Since the abstract
only traces the title and the title insurance only insures the title, the most important
and therefore first group to examine are the deeds that purportedly convey the fee
from seller to purchaser.
These deeds include the ones as follows: warranty deed, quitclaim deed, sheriff's ~)
f
deed, trustee's deed, judicial deed, tax deed, will, or any other instrument that pur-
portedly conveys the title. All of these documents state that it conveys the ownership
to the land. Each of these, however, is actually a color of title. [G. Thompson, Title to
Real Property, Preparation and Examination of Abstracts, Ch. 3, §73, p. 93 (1919).)
A_ color of title is that which in appearance is title, but which in reality is not title.
[ Wright v. Mattison, 18 How. (U.S.) 50 (1855).) In fact, any instrument may con-
stitute color of title when it purports to convey the title to the land, as well as the land
itself, although it is void as a muniment of title. [Joplin Brewing Co. v. Payne, 197
Mo. 422, 94 S .W. 896 (1906).] The Supreme Court of Missotiri has stated "that
<)
[w)hen we say a person has a color of title, whatever may be the meaning of t!".e
phrase, we express the idea, at least, that some act has been previously done ... by
which some title, good or bad, to a parcel of land of definite extent has been conveyed
to him." [St. Louis v. Gorman, 29 Mo. 593 (1860) .] In other words, a color of title is
an appearance or apparent title, an "image" of the true title, hence the phrase "color
of' which, when coupled with possession, purports to convey the ownership of the
land to the purchaser. This however does not say that the color of title is the actual
and true title itself, nor does it say that the color of title itself actually conveys owner-
ship . In fact, the claimant or holder of a color of title is not even required to trace the
title through the chain down to his instrument. [Rawson v. Fox, 65 Ill. 200 (1872).]
Rather it may be said that a color of title is primafacie evidence of ownership of and
rights to possession of the land until such time as that presumption of ownership is
disproved by a better title or the actual title itself. If such cannot be proven to the con-
trary, then ownership of the land is assumed to have passed to the occupier of the
land. To further strengthen a color of title holder's position, courts have held that the
good faith of the holder to a color of title is presumed in the absence of evidence to the
contrary. [Davis v. Hall, 92 Ill . 85 (1879); see also Morrison v. Norman, 47 Ill. 477
(1868); and McConnell v. Street, 17 Ill. 253 (1855).]
With such knowledge of what a color of title is, it is interesting what constitutes col-
ors of title. A warranty deed is like any other deed of conveyance . [Mahrenholz v.
County Board of School Trustees of Lawrence County, et. al. , 93 Ill. App. 3d 366
( 1981).] A warranty deed or deed of conveyance is a color of title, as stated in Demp-
Memorandum of Law, History, Force & Effect of the Land Patent 25
 .tey v. Burm, [281 Ill. 644, 650 (1917)J. Deeds constitute colors of title. [See also
Dryden v. Newman, 116 Ill. 186 (1886).) A deed that purports to convey interest in
the land is a color of title. [Hinckley v. Green, 52 JU. 223 (1869).] A deed which, on its
face, purports to convey a title, constitutes a claim and color of title. [Bwch v.
Hwton, 75 Ill. 343 (1874); Chiclten'ng v. Faile.s, 26 Ill. 508 (1861).] A quitclaim deed
is a color of title as stated in Safford v. Stubbs [117 Ill. 389 (1886)]. f See also
Holloway v. Clarie, 27 Ill. 483 (1861) and McClellan v. Kellogl? 17 III. 4QC (1855).]
Quitclaim deeds can pass the title as effectively as a warranty with full covenants.
[Grant v. Bennett, 96 Ill. 513, 525 (1880).] [See also Morgan v. Clayton, 61 Ill. 35
(1871); Brady v. Spurclt, 27 Ill. 478 (1861); Butterfield v. Smith, 11 Ill. 485, (1849).]
Sheriff's deeds also are colors of title) [Kendrick v. Latham, 25 Fla. 819 (1889)} as is a
judicial deed [Huls v. Buntin, 47 Ill. 396 (1865)]. The Illinois Supreme Court went in-
to detail in its determination that a tax deed is only color of title. "There the /
complainant seems to have relied upon the tax deed as conveying to him the fee, and
to sustain such a bill, it was incumbent of him to show that all the requirements of the
law had been complied with." A simple tax deed by itself is only a color of title. Fee
simple can only be acquired through adverse possession via payment of taxes, claim
and color of title, plus seven years of payment of taxes. Thus any tax deed which pur-
ports, on its face, to convey title is a good color of title. [Walker v. Converse, 148 Ill.
622, 629 (1894); see also Peadro v. Carriker, 168 Ill. 570 (1897); Chicago v. Mid-
dlebroolce, 143 Ill. 265 (1892); Piatt County v. Goodell, 97 Ill. 84 (1880); Stubblefield
v. Borders, 92 Ill. 284 (1879); Coleman v. Billings, 89 Ill. 183 (1878); Whitney v.
Steven.,, 89 Ill. 53 (1878); Thomas v. Eckard, 88 Ill. 593 (1878); Holloway v. Clarke,
27 Ill. 483 (1861).) A will passes only a color of title. [Baldwin v. Ratcliff, 125 Ill. 376
(1888); Bradley v. Rees, 113 Ill. 327 (1885).] A will can pass only so much as the
testator owns, though it may attempt to pass more. A trustee's deed, a mortgage and
strict foreclosure [Chickering v. Failes, 26 111. 508, 519 (1861)], or any document
defining the extent of a disseisor's claim or purported claim [Cook v. Norton, 43 Ill.
391 (1867)], all have been held to be colors of title. In fact, "[t]here is nothing here re-
quiring a deed, to establish a color of title, and under the former decisions of this
court, color of title may exist without a deed." [Baldwin v. Ratcliff, 125 Ill. 376, 383
(1888).] A color of title does not mean the actual title, nor does the question of notice
of outstanding title affect a color of title. [Burgett v. Taliaferro, 118 111. 503 (1886);
see also Connor v. Goodman, 104 Ill. 365 (1882); County of Piatt v. Goodell, 97 Ill. 84
(1880); Smith v. Ferguson, 91 Ill. 304 (1878); Hassett v. Ridgely, 49 Ill. 197 (1868);
Brooks v. Bruyn, 35 Ill. 392 (1864); McCagg v. Heacock, 34 Ill. 476 (1864); Bride v.
Watt, 23 Ill. 507 (1860); and Woodward v. Blanchard, 16 Ill. 424 (1855).] All of these
cases being still valid and none having been overruled, in effect, the statements in
these cases are well established law. All of the documents described in these cases are
the main avenues of claimed land ownership in America today, yet none actually con-
veys the true and allodial title . They in fact convey something quite different.
r When it is stated that a color of title conveys only an appearance of or apparent ti-
/ tie, such a statement is correct, but perhaps too vague to be properly understood in its
: correct legal context. What are useful are the more pragmatic statements concerning
title. A title or color of title, in order to be effective in transferring the ownership nr
purported ownership of the land, must be a marketable or merchantable title.
--- -··--··-·
\ 26 Land PatentJ
 A marketable or merchantable title is one that is reasonably free from doubt.
[Austi;;~~Bamum, 52 Minn. 136.(1892).] This title must be as reasonably free from
: doubts as necessary to not affect the ::narketability or saleability of the property, and
must be a title a reasonably prudent person would be willing to accept. [Roberts v.
McFadden, 32 Tex. Civ. App. 47, 74 S.W. 105 (1903).] Such a title is often described
. as one which would ensure to the purchaser a peaceful enjoyment of the property
i [Barnard v. Brown, 112 Mich. 452, 70 N.W. 1038 (1897)], and it is stated that such a
, title must be obvious, evident, apparent, certain, sure or indubitable. [Ormsby v.
Graham, 123 Ia. 202, 98 N.W. 724 (1904).] Marketable Title Acts, which have been
adopted in several of the states, generally do not lend themselves to an interpretation
that they might operate to provide a new foundation of title based upon a stray, ac-
cidental, or interloping conveyance. Their object is to provide, for the recorded fee
simple ownership, an exemption from the burdens of old conditions which at each
transfer of the property interferes with its marketability. [Wiehe/man v. Messner, 83
N. W. 2d 800, 806 (1957).] What each of these legal statements in the various factual
situations says is that the color of title is never described as the absolute or actual title,
rather each says that it is one of the types of titles necessary to convey ownership or
apparent ownership. A marketable title, what a color of title must be in order to beef-
fective, must be a title which is good of recent record, even if it may not be the actual
title in fact. [Close v. Stuyvesant, 132 Ill. 607, 24 N.E. 868 (1890).] "Authorities hold
that to render a title marketable it is only necessary that it shall be free from
reasonable doubt; in other words, that a purchaser is not entitled to demand a title
absolutely free from every possible suspicion." [Cummings v. Dolan, 52 Wash. 4%,
100 P. 989 (1909).] The record being spoken of here is the title abstract and all
documentary evidence pertaining to it. "It is an axiom of hornbook law that a pur-
chaser has notice only of recorded instruments that are within his "chain of title." [1
R. Patton & C. Patton, Patton on Land Titles, §69, at 230-33. (2nd ed. 1957); Sabo v.
Horvath, 559 P. 2d 1038, 1043 (Ak. 1976).] Title Insurance then guarantees that a ti-
tle is marketable, not absolutely free from doubt.
Thus, under the color of title system used most often in this country today, no in-
dividual operating under this type of title system has the absolute or allodial title. AIi
that is really necessary to have a valid title is to have a relatively clean abstract with a
recognizable color of title as the operative marketable title within the chain of title. It
therefore becomes necessarily difficult, if not impossible after a number of years, con-
sidering the inevitable contingencies that must arise and the title disputes that will OC·
cur, to ever-properly guarantee an absolute title. This is not necessarily the fault of the
seller, but it is the fault of the legal and real estate systems for allowing such a diluted
fonn of title to be controlling in an area where it is imperative to have the absolute ti-
tle. In order to correct this problem. it is important to return to those documents the
early leaders of the nation createa to properly ensure that property remained one of
the inalienable rights that the newly establi'-hed sovereign freeholden could rely on to
always exist. This correction must be in the form of restricting or perhaps eliminating
the widespread use of a marketable title and returning to the absolute title.
Other problems have developed because of the use of a color of title system for the
conveyance of land. These problems arise in the area of terminology that succeed in
only confusing and clouding the title to an even greater extent than merely using
Memorandum of Law, Hi.Jtory, Force & Effect of the Land Patent 27
 terms like marketability, saleability, or merchantability. When a person must also
determine whether a title is complete, perfect, good and clear or whether it is bad ,
defective, imperfect and doubtful, there is an obvious possibility of destroying a chain
of title because of an inability to recognize what is acceptable to a reasonable pur-
chaser.
A complete title means that a person has the possession, right of possession and the
right of property. [Dingey v. Paxton, 60 Miss. 1038 (1883) and Ehle v. Quaclcenboss,
6 HiIJ (N.Y.) 537 (1884).] A perfect title is exactly the same as a complete title.
[Donovan v. Pitcher, 53 Ala. 411 (1875) and Gonverse v. Kellogg, 7 Barb. (N. Y.) 590
(1850)], and each simply means the type of title a well-informed, reasonable and pru-
dent person would be wilJing to accept when paying full value for the property. [Birge
v. Boele, 44 Mo. App. 69 (1890).] In other words, a complete or perfect title is in reali-
ty a marketable or merchantable title, and is usuaJiy represented by a color of title.
A good title does not necessarily mean one perfect of record but consists of one
~ which is both of rightful ownership and rightful possession of the property. [Bloch v.
Ryan, 4 App. Cas. (D.C.) 283 (1894).) It means a title free from litigation, palpable
defects and grave doubts consisting of both legal and equitable titles and fairly
deducible of record. [Reynolds v.· Borel, 86 Cal. 538, 25 P. 67 (1890).) ''A good title
means not merely a title valid in fact, but a marketable title, which can again be sold
to a reasonable purchaser or mortgaged to a person of reasonable prudence as securi-
ty for a loan of money." [Moore v. Williams, 115 N. Y. 586, 22 N.E. 253 (1889).] A
clear title means there are no encumbrances on the land [Roberts v. Bassett, 105
Mass. 409 (1870)] . Thus, when contracting to convey land, the use of the phrase
"good and clear title" is surplusage, since the terms good title and clear title are in
fact synonymous. [Oalcley v. Cook, 41 N.J. Eq. 350, 7 A. 2d 495 (1886).) Therefore,
the words good title and clear title, just like the words complete title and perfect title,
describe nothing more than a marketable title or merchantable title, and as stated
above, each can and almost always is represented in a transaction by a color of title.
None of these types of titles purports to be the absolute or allodial title, and none of
them are that type of title. None of these actually claims to be a fee simple absolute,
and since these types of titles are almost always represented by a color of title, none
represents that it passes the actual title. Each one does state that it passes what can be
described as a title good enough to avoid the necessity of litigation to determine who
actually has the title. If such litigation to determine titles is necessary, then the title
has crossed the boundaries of usefulness and entered a different category of title
descriptions and names.
This new category consists of titles which are bad, defective, imperfect or doubtful.
A bad title conveys no property to the purchaser of the estate. [Heller v. Cohen, 15
Misc. 378, 36 N.Y.S. 668 (1895).) A title is defective when the party claiming to own
the land has not the whole title, but some other person has title to a part or portion of
it. Such a title is the same as no title whatsoever. [Place v. People, 192 Ill. 160, 61
N.E. 354 (1901); see also Cospertini v. Opperman, 76 Cal. 181, 18 P. 256 (1888).] An
imperfect title is one where something remains to be done by the granting power to
pass the title to the land. [Paschel v. Perez, 7 Tex. 348 (1851)], and a doubtful title is
also one which conveys no property to the purchaser of the estate. [Heller v. Cohen,
15 . Misc. 378, 36 N.Y .S. 668 (1895).) Every title is described as doubtful which in-
28 Land PatentJ
 vites or exposes the party holding it to litigation. [Herman v. Somers, 158 Pa. St. 424,
27 A. 1050 (1893). J Each of these types of titles describes exactly the same idea stated
in many different ways, that because of some problem , defect, or question surrounds
~ ing the title, no title can be conveyed, since no title exists. Yet in all of these situations
somt type of color of title was used as the operative instrument. What then makes one
color of title complete, good or clear in one situation, and in another situation the
sam e type of color of title could be described as bad, defective, imperfect or doubtful?
What is necessary to make what might othernise be a doubtful title, a good title, is
the belief of others in Nie community, whether or not properly justified, that the title
is a good one which they would be willing to purchase. [Moore v. Williams, 115 N. Y.
586, 22 N.E. 253 (1889).] The methods presently used to determine whether a title or
color of title is good enough to not be doubtful, are the other two-thirds of the three
possible requirements for the conveyance of a good or complete (marketable) title.
These two methods of properly ensuring that a title is a good or complete title are ti-
tle abstracts, the complete documentary evidence of title, and title insurance. The
legal title to land, based on a color of title, is made up of a series of documents re-
quired to be executed with the solemnities prescribed by law, and of facts not evidenc-
ed by documents, which show the claimant a person to whom the.~1ves the es~~t~_..
Documentary evidences of title consist of voluntary grants by the sovereign, deeds of
conveyance and wills by individuals, conveyances by statutory or judicial permission,
deeds made in connection with the sale of land for delinquent taxes, proceedings
under the power of eminent domain, and deed~ executed by ministerial or fiduciary
officers. Those documentary evidences are represented by the land patent and the col-
ors of title. [1 G. Thompson, Commentan'es on the Modern Law of Real Property.
pp.99-100 (5th ed. 1980).] These instruments, relied upon to evidence the title, coupl-
ed with the outward assertive acts that import dominion, must be used by the abstrac-
tor in compiling the abstract, and the attorney must examine to determine the true r
, ~ status of the title. [Id. ]/f5e abstract is the recorded history of the land and the various
types of titles, mortgages and other liens, claims and interests that have been placed
on the property. The abstract can determine the number of times the patent has been
redeclared, who owns the mineral rights, what color of title is operable at any par-
ticular point in time, and what lien holder is ~·n fir t position, but it does not convey or
-'-;)/ even attempt to convey any form of the title itself. As Thompson supra has stated, it is
necessary when operating with colors of tit e o have an abstract to determine the
status of the operable title and determine whether that title is good or doubtful. [Id.
at 101 .J If the title is deemed good after this lengthy process, then the property may be
transferred without doing anything more, since it is assumed that the seller was the
owner of the property. This is not to say emphatically that the seller is the paramount
or absolute owner. This does not even completely guarantee that he is the owner of the
land against any adverse claimants . It is not even that difficult to claim that the
titleholder has a good title due to the leniency and attitude now evidenced by the
judicial authorities toward maintaining a stable and uniform system of land owner-
ship, whether or not that ownership is justified. This, however, does not explain the
purpose and goal of a title abstract.
An abstract that has been properly brought up simply states that it is presumed the
seller is the owner of the land , making the title marketable, and guaranteeing that he
Mem orandum of Law, History . Force & Effect of the Land Patent 29
 has a good title to sell. This is all an abstract can legally do si:ice it is not the title itself
and it does not state the owner has an absolute title. Therefore, the abstract can not
guarantee unquestionably that the title is held by the owner. All of this rhetoric is
necessary if the title is good; if there is some question concerning the title without
making it defective, then the owner must turn to the last of the three alternatives to
help pass a good title, title insurance . [G. Thompson, Title to Real Prope"ty,
Preparation and Examination of Abstrarts, Ch. III, §79 , pp. 00-100 (1919).]
Title insurance is issued by title insurance companies to insure the validity of the ti -
tle against any defects, against any encumbrances affecting the designated property,
and to protect the purchaser against any losses he sustains from the subsequent deter-
mination that his title is actually unmarketable. [Id. at 100.] Title insurance extends
to any defects of title. [Id.]. It protects against the existence of any encumbrance,
whether discoverable or not by the most thorough and complete searches, provided
only tharl any judgments adverse to the title shall be pronounced by a court of compe-
tent jurisdiction. [Id.] It is not even necessary that a defect actually exists when the in-
surance policy was issued, it is simply necessary that there exists at the time of is-
suance of the policy an inchoate or potential defect which is rendered operative and
substantial by the happening of some subsequent event. Since all one normally has is
color of title, the longer a title traverses history, the greater the possibility that the ti-
tle will become defective. The greater the need for insurance simply to keep the title
marketable, the easier it is to determine that the title possessed is not the true, para-
mount and absolute title. If a person had the paramount title, there would be no need
for title insurance, though an abstract might be useful for record keeping and
historical purposes. Title insurance and abstract record keeping are useful primarily
because of extensive reliance on colors of title as the operative title for a piece of prop-
erty.
This then supplies the necessary information concerning colors of title, title
abstracts, and title insurance. This does not describe the relationship between the
landowner and the government. As was stated in the introduction, iri feudal England,
the king had the power, right and authority to take a person's land away from him, if
and when the king felt it necessary. The question is whether most of the American
system of land ownership and titles is in reality any different and whether therefore
the American-based system of ownership, is in reality nothing more than a feudal
system of land ownership.
/ Land ownership in America presently is founded on colors of title, and though peo-
/ pie, believe they are the complete and total owners of their property under a color of ti-
Lle system, this is far from the truth. When people state that they are free and own
their land, they in fact own it exactly to the extent the English barons owned their
land in common law England . They own their land so long as some "sovereign," the
government or a creditor, states that they can own their land. If one recalls from the
beginning of this memorandum, it was stated that if the king felt it justified, he could
take the land from one person and give such land to another prospective baron. To-
day, in American color-of-title property law, if the landowner does not pay income
tax, estate tax, property tax, mortgages, or even a security note on personal property,
then the "sovereign," the government or the creditor, can justify the taking of th.:
property and the sale of that same property to another prospective "baron" while
JO Land Patents
 leaving the owner with only limited defenses to such actions . The only real difference
between this and common law England is that now others besides the king can profit
from the unwillingness or inability of the "landowner" to perform the ~ e--.or ~·~
tenure required of every landowner in America. As such no one is complete-iy safe or
protected on his property. No one can afford to make one mistake, or the conse-
quences will be forfeiture of the property. If this were what the people in the
mid-l 700s wanted, there would have been no need to have an Au1erican Revolution,
since the taxes were secondary to having a sound monetary system and complete
ownership of the land. Why fight a Renlutionary War to escape sovereign control
and virtual dictatorship over the land, when in the 1980s these exact problems are
prevalent with this one exception, money now changes hands in order to give ~ity__ _
-----... to the eventual and continuous takeover of the property between the parties. This is
hardly what the Founding Fathers strived for when creating the United States Con-
stitution, and what they did strive for is the next segment of the memorandum of law,
~ ~ownership of the land via the land patent. The next segment will analyze the
history of this type of title so that the patent can be properly understood, making it
possible to comprehend the patent's role in property law today.

I
I

SECTION III

LAND PATENTS

WHY THEY WERE CREATED .

AS WAS SEEN in the previous sections, there is little to protect the landowner who
holds title in the chain of title, when distressful economic or weather conditions make
it impossible to perform on the debt. Under the color-of-title system, the property,
"one of those inalienable rights," can . be taken for the nonperformance on loan
obligations. This type of ownership is similar to the feudal ownership found in the
Middle Ages.
Upon defeating the English in 1066 A.D., William the Conqueror pursuant to his
52nd and 58th laws, " ... effectually reduced the lands of England to feuds, which
were declared to be inheritable and from that time the maxim prevailed there that all
lands in England are held from the king, and that all preceeded from his bounty." [1
E. Washburn, Treatise on The American Law of Real Property, §65, p. 44 (6th ed.
1902).] All lands in Europe, prior to the creation of the feudal system in France and
Germany, were allodial. Most of these lands were voluntarily changed to feudal lands
as protection from the neighboring barons or chieftains. [Id §56, at 40.] Since no
documents protected one's freedom over his land, once the lands were pledged for
protection, the lands were lost forever. This was not the case in England.
England never voluntarily relinquished its land to William I. In fact, were it not for
a tactical error by King Harold II's men in the Battle of Hastings , England might
Memorandum of Law , History , Force & Effect of the Land Patem 31
 never have become feudal. A large proportion of the Saxon lands prior to the Con-
quest of A.D. 1066 "were held as allodial, that is, by an absolute ownership, without
recognizing any superior to whom any duty was due on account thereof." [Id. §54, at
39.) The mode of conveying these allodial lands was most commonly done by a writing
or charter, called a land-hoc, or land-allodial charter, which, for safekeeping between
conveyances, was generally deposited in the monasteries. [Id., §54, at 40.] In fact,
one portion of England, the County of Kent, was allowed to retain thi" form of land
ownership close to the level found in the County of Kent. Other sections, i.e., 10, 11,
26, 27, 37, 43, 52, 56, 57, and 61 were wri:ten to protect the right to "own" property,
to illustrate how debts affected this right to own property, and to secure the return of
property that was unjustly taken. All these paragraphs were written with the single
goal of protecting the "landowner" and helping him retain possession of his land, ac-
quired in the service of the king, from unjust seizures or improper debts. The barons
attempted these goals with the intention of securing property to pass to their heirs.
The Magna Carta was the basis of modem common law, the common law being a
series of judicial decisions and royal decrees interpreting and following that docu-
ment. The Magna Carta protected the basic rights, the rights that gave all people
more freedom and power, the rights that would slowly erode the king's power.
Among these rights was a particular section dealing with ownership of the land.
The barons still recognized the king as the lord paramount, but the barons wanted
some of the rights their ancestors had prior to A.O. 1066. [F. Goodwin, Treatise on
The Law of Real Property, Ch. l, p. 3 (1905).] Under this theory, the barons would
have several rights and powers over the land, as the visible owners, that had not ex-
isted in England for 150 years. The particular section of most importance was Section
62 giving the more powerful barons letters patent, raising their land ownership close
to the level found in the County of Kent. Other sections, i.e., 10, 11, 26, 27, 37, 43,
52, 56, 57, and 61 were written to protect the right to "own" property, to illustrate
how debts affected this right to own property, and to secure the return of property
that was unjustly taken. All these paragraphs were written with the single goal of pro-
tecting the "landowner" and helping him retain possession of his land, acquired in
the service of the king, from unjust seizures or improper debts. The barons attempted
these goals with the intention of securing property to pass to their heirs.
Unfortunately goals are often not attained. Having repledged their loyalty to King
John, the barons quickly disbanded their armies. King John died in 1216, one year
after signing the Magna Carta, and the new king did not wish to grant such privileges
found in that document. Finally, the barons who forced the signing of the Magna
Carta died, and with them went the driving force that created the great charter. The
Magna Carta may have still been alive, but the new kings had no armies at their door
forcing them to follow policies, and the charter was to a great extent forced to Jie dor-
mant. The barons who received the letters patent, as well as other landholders,
perhaps should have enforced their rights, but their heirs were not in a position to do
so, and eventually the rights contained in the charter were more or less forgotten. In-
creasingly, until the mid-1600s, the king's rower waxed, abruptly ending with the ex-
ecution of Charles I in 1649. By then, however, the original intent of the Magna Carta
· was in part lost and the descendents of the original barons never reacquired properly
32 Land Patents
 protected free land ownership. To this day, the freehold lands in England are still
held to a great extent upon the feudal tenures. [See supra Washburn, §80, p. 48.]
This lack of complete ownership in the land, as well as the more publicized search for
religious freedom, drove the more adventurous Europeans to the Americas to be away
from these restrictions.
The American colonists however soon adopted many of the same land concepts
used in the old world. The kings of Europe had the authority to still exert influence,
and the American version of barons sought to retain large tracts of land. As an exam-
ple, the first patent granted in New York went to Killian Van Rensselaer, dated in
1630, and confirmed in 1685 and 1704. [A. Getman, Title to Real Property, Prin .
ciples and Sources of Titles-Compensation For Lands and Waters, Part III, Ch. 17,
p. 229 (1921).) The colonial charters of these American colonies, granted by the King
of England, had references to the lands in the County of Kent, effectively denying the
more barbaric aspects of feudalism from ever entering the continent, but feudalism
with its tenures did exist for some time. [See supra Washburn, §55, p. 40.] "[I]t may
be said that, at an early date, feudal tenures existed in this country to a limited ex-
tent." [C. Tiedeman, An Elementary Treatise on the American Law of Real Properly,
Ch. II, The Principles of the Feudal System, §25, p. 22 (2nd ed. 1892).] The result
was a newly created form of feudal land ownership in America. As such, the feudal
barons in the colonies could dictate who farmed their land, how their land was to be
divided, and to a certain extent to whom the land should pass. But, just as the
original barons discovered, this power was premised in part of the performance of
duties for the king. Upon the failure of performance, the king could order the grant
revoked and grant the land to another willing to acquiesce to the king's authority.
This authority, however, was premised on the belief that people, recently arrived and
relatively independent, would folJow the authority of a king based 3,000 miJes away.
Such a premise was ill-founded. The colonists came to America to avoid taxation\ <:>
without representation, to avoid religious persecution, and to acquire a small tract of_\
land that could be owned completely. When the colonists were forced to pay taxes and
were required to allow their homes to be occupied by soldiers, they revolted, fighting
.. -
the British, and publishing their Declaration of Independence.
The Supreme Court of the United States reflected on this independence [in
·. Chisholm v. Georgia, 2 Dall. (U.S.) 419 (1793)1, stating:
The revolution, or rather the Declaration of Independence, found the people already
united for general purposes, and at the same time, providing for their more domestic con-
cerns, by state conventions, and other temporary arrangemenu. From the crown of Great
Britain, the sovereignty of their country passed to the people of it; and it was then not an
uncommon opinion, that the unappropriated lan<h, which belonged to that crown, passed,
not to the people of the colony or states within those limits they were situated, but to the
whole people ... "We, the people of the United States, do ordain and establish this con-
stitution." Herc we sec the people acting as sovereigns of the whole country; and in the
language of sovereignty, establishing a constitution by which it wu their will, that the state
governmenu, should be bound, and to which the state constitutions should be made to con-
form ... It will be sufficient to observe briefly, that the sovereignties in Europe, and par-
ticularly in England, erirt on feudal principles. That system conliden the prince u the
sovereign, and the people his subjects; it regar<h his person u the object of allegiance, and
excludes the idea of hu being on an equal footing with a subject, either in a court of justice
or elsewhere. That system contemplates him u being the fountain of honor and authority;
and from his grace and gra.nt, derives all franchises, immunities and privileges; it is easy to
Memorandum of Law, HiJtory, Force & Effect of the Land Patent 33
 perceive, that such a sovereign could not be amendable to a court of justice, or subjected to
judicial control and actual constraint ... The same feudal ideas run through all their juris-
prudence, and constantly remind us of the distinction between the prince and the subject.
~ o such ideas obtain here; at the revolution, the sovereignty devolved on the people; and
; they are truly the sovereigns of the country, but they are .rnvereign.s without subjects . ..
I and have none to govern but themselves; the citizen.s of America are equal as fel/ow-
1._;;itizen.s, and as joint tenants in the sovereignty. From the differences existing between
feudal soverei~ties and governments foundeu on compacts, it necessarily foll0ws, that
their respective prerogatives must differ. Sovereignty is the right to l!,v,ern; a nation or state
sovereign is the person or persons in whom that resides. In Europe, the sovereignty is
generally ascribed to the prince; here it rests with the people; there the sovereign actually
administers the government; here never in a single instance; our governors are the agents of
the people, and at most stand in the same relation to their sovereign, in which the regents of
Europe stand to their sovereigns. Their princes have personal powers, dignities and
preeminences, our rulers have none but official; nor do they partake in the sovereignty
otherwise, or in any other capacity, than as private citizens. [Emphasis added. Id. at
470-71.J

The Americans had a choice as to how they wanted their new government and
country to be formed. Having broken away from the English sovereignty and
establishing themselves as their own sovereigns, they had their choice of types of taxa-
tion, freedom of religion, and most importantly ownership of land. The American
Founding Fathers chose allodial ownership of land for the system of ownership in this
country. In the opinion of Judge Kent, the question of tenure as an incident to the
ownership of lands "has become wholly immaterial in this country, where every
vestige of tenure has been annihilated." (See supra Washburn, §118, p. 59.] At the
present day there is little, if any, trace of the feudal tenures remaining in the
American law of property. bands in this country are now held to be absolute!)'..
allodial. (See supra Tiedeman, §25, p. 22.]
Upon the completion of the Revolutionary War, lands in the thirteen colonies were
held under a different form of land ownership. As stated (In re Waltz et. al., Barlow
v.. Security Trust and Savings Bank, 240 P. 19 (1925), quoting Matthews v. Ward, 10
Gill & J. (Md.) 443 (1839)), "after the American Revolution, lands in this state
(Mfil:Y1!!!!Q)_J>~C~_Il}~_~IIQruAJ, .. Jiaj}j~~t~tQ.u_~j~~~~~;····;~~~~-~.~l :~-~~~~-~t
thereto." The tenure, you will recall, was the feudal tenure and the services or taxes
~quired to be paid to retain possession of the land under the feudal sysfam. This new
~e of ownership was acquired in all thirt~!.!~~s. [ Wallace v. Harmstead, 44 Pa.
492 (1863).] The American people, before developing a properly functioning stable
government, developed a stable system of land ownership, whereby the people owned
their land absolutely and in a manner similar to the king in comma~ law England.
As has been stated earlier, the original and true mea~ng of the word "fee" and
therefore fee simple absolute is the same as fief or feud, this being in contradistinction
to the term "allodium_,'' which means or is defineQ...M.,Lman's QWO land, which he
possess s me;~(-r; his own ri ht, without owing an rent or service to ·or.
[ Wendell v. Crandall, 1 N. Y. 491 ( a ~d another way, the fee simple estate of
early England was never considered as absolute, as were lands in allodium, but were
subject to some superior on condition of rendering him services, and in which the
such superior had the ultimate ownership of the land. [In re Waltz at page 20,
quoting 1 Cooley's Blackstone (4th Ed.) p. 512.J This type of fee simple is a common
34 Land Patents
 \

law term and sometimes corresponds to what in civil law is a perfect title. [United
\\1}0--1.
States v. Sunset Cemetary Co. , 132 F. 2d 163 (1943).] It is unquestioned that the king
held an allodial title which was different than the common law fee simple abs<J.!llte.
v-·
This type of superior title was bestowed upon the newly established American people
by the Founding Fathers. The people were sovereigns by choice, and t~ugh this new
type of land ownership, the people were sovereign freeholde:.~!. kings ~e£.!.ti.~E-~!:n
·iaiia;-heiiofden .to no lord or-~upenor-.- -As-stated- fo- Sianton v. Sullivan [7 A. 69(>
T1839)), such an estate is anabsoh.ite estate in perpetuity and the largest possible
estate a man can have, being, in fact al!odial in its nature. This type of fee simple, as
thus developed, has definite characteristics: (1) it is a present estate in land that is of
indefinite duration; (2) it is freely alienable; (3) it carries with it the right of posses-
sion ; and most importantly (4) the holder may make use of an ortion of the freehold
~.!..~~Jng beholden to any person,, 1 G. Thompson, Commentaries on the ·
Modem Law of Real Property, §1856, p. 412 (1st ed. 1924).) This fee simple estate
means an absolute estate in lands wholly unqualified by any reservation, reversion,
condition, or limitation, or possibility of any such thing present or future, precedent
or subsequent. [Id.,· Wiehe/man v. Messner, 83 N.W. 2d 800, 806 (1957).J It is the
most extensive estate and interest one may possess in real property, whereas an estate
subject to an option is not in fee. [See supra 1 Thompson, §1856, p. 413.J In the case,
Bradford v. Martin [201 N. W. 574 (1925)}, the Iowa Supreme Court went into a
/e;;gthy discussion on what the terms fee simple and al/odium mean in American
property law. The Court stated:
The word "absolutely" in law has a varied meaning, but when unqualifiedly used with
reference to titles or interest in land, its meaning is fairly well settled. Originally the two
titles most discussed were "fee simple" and "allodium" (which meant absolute). See Bouv.
Law Diet. (Rawle Ed.) 134; Wallace v. Harm.stead, 44 Pa. 492; McCartee v. Orphan's
A.Jy/um, 9 Cow. (N. Y.) 437, 18 Am. Dec. 516. Prior to Blackstone's time the allodial title
was ordinarily called an "absolute title" and was superior to a "fee simple title," the latter
being incumbered with feudal clogs which were laid upon the first feudatory when it was
granted, making it possible for the holder of a fee-simple title to lose his land in the event he
failed to observe his feudatory oath. The allodial title was not so incumbered. Later the
term "fee simple," however rose to the dignity of the allodium or absolute estate, and since
the days of Blackstone the word "absolute estate" and "fee simple" seem to have been
generally used interchangeably; in fact, he so uses them-See Book II, chap. 7, pp. 104-105
... And further the words "absolute" and "absolutely" usually carry the fee .. . By the
terms "absolute interest" we understand a complete and perfect interest ... an estate in
fee simple is meant. [Id. at 576.]

The basis of English land law is the ownership of the realty by the sovereign. From
the crown all titles flow. [People v. Richardson, 269 Ill. 275, 109 N.E. 1033 (1914);
see also Matthew v. Ward, 10 Gill & J (Md.) 443 (1844). The case, McConnell v.
Wilcox [1 Scam. (Ill.) 344 (1837)], stated it this way:

From what source does the title to the land derived from a government spring? In ar-
bitrary governments, from the supreme head-be he the emperor, king, or potentate; or by
whatever name he is known . In a republic, from the law making or authorizing to be made
the grant or sale. In the first case, the party looks alone to his letters patent; in the second,
to the law and the evidence of the acts necessary to be done under the law, to a perfection of
his grant, donation or purchase ... The law alone must be the fountain from whence the
authority is drawn ; and there can be no other source . [Id. at 367. J
Memorandum of Law, History , Force & Effect of the Land Pate;,t 35
 Th~_American_pe~~le,. newly ~~tablishe~-~<?~.~~~8.?_s.~~-t-~is repubJic after the victory
achieved during the Revolutionary .. War, becam_~_ coE.1-~e ~ers in their land,
~eholdef!_tq_ no__l~rd ...<J.r. . _s4pe.tiqr.; -~9veJ~ fr_
~lt.<?l~rs.in_the land themselves.
These freeholders in the original thirteen states now held allodially the land they
possessed before the war only feudally. This new and more powerful title protected
the sovereigns from unwarranted intrusions or attempted takings of their land, and
· ·· more importantly it secured in them a right to own land absolutely in perpetuity. By
definition, the word perpetuity means, "Continuing forever. Legally, pertaining to
real property, any condition extending tl-ie inalienability ... " [Black's Law Dic-
tionary, p. 1027 (5th ed. 1980).] In terms of an allodial title, it is to have the property
of inalienability forever. Nothing more need be done to establish the ownership of the
sovereigns to their land, although confirmations were usually required to avoid possi-
ble future title confrontations. The states, even prior to the creation of our present
constitutional government, were issuing titles to the unoccupied lands within their
boundaries. In New York, even before the war was won, the state issued the first land
patent in 1781, and only a few weeks after the battle and victory at Yorktown in 1783,
that state issued the first land patent to an individual. [A. Getman, supra, Part III,
Ch. 17, State Legislatt've Grants, pp. 231-32 (1921).] In fact, even before the United
States was created, New York and other states had developed their own land offices
with commissioners. New York's was first established in 1784 and was revised in 1786
to further provide for a more definite procedure for the sale of unappropriated state
lands. [Id.] The state courts held, "The validity of letters patent and the effectiveness
same to convey title depends on the proper execution and record ... It has

m nerally been the law that public grants to be valid must be recorded. The recqrd is
t for purposes of notice under recording acts but to make the transfer effectual."
[Id., at 242.J. Later, if there was deemed to be a problem with the title, the state
grants could be confirmed by issuance of a confirmatory grant. [Id. at 239.J This
then, in part, explains the methods and techniques the original states used to pass ti-
tle to their lands, lands that remained in the possession of the state unless purchased
by the still yet-uncreated federal government, or by individuals in the respective
states. To much this same extent Texas, having been a separate country and republic,
controlled and still controls its lands. In each of these instances, the land was not
originally owned by the federal government and then later passed to the people and
states. This then is a synopsis of the transition from colony to statehood and the rights
to land ownership under each situation. This however has said nothing of the methods
used by the states in the creation of the federal government and the eventual disposal
of the federal lands.
The Constitution in its original form was ratified by a convention of the states on
September 17, 1787. The Constitution and the government formed under it were
declared in effect on the first Wednesday of March, 1789. Prior to this time, during
the Constitutional Convention, there was serious debate on the disposal of what the
convention called the "Western territories," now the states of Ohio, Indiana, Illinois,
Michigan, Wisconsin and part of Minnesota, more commonly known as the North-
west Territory. This tract of land was ceded to the new American republic in the trea-
ty signed with Britain in 1783.
The attempts to determine how such a disposal of the western territories should
36 Land Patents
 come about was the subject of much discussion in the records of the Continental Con-
gress. Beginning in September, 1783, there was continual discussion concerning the
acquisition of and later disposition to the lands east of the Mississippi River. [Jour-
nals of Congress, Papers of the Continental Congress, No. 25, II, folio 255, p. 554-557
(September 13, 1783).]
And whereas the United States have succeeded to the sovereignty over the Western
territory , and are thereby vested as one undivided and independent nation, with all and
every power and right exercised by the king of Great Britain, over the said territory, or the
lands lying and situated without the boundaries of the several states, and within the limits
above described; and whereas the western territory ceded by France and Spain to Great
Britain, relinquished to the United States by Great Britain, and guarantied to the United
States by France as aforesaid, if properly managed, will enable the United States to comply
with their promises of land to their officers and soldiers; will relieve their citizens from
much of the weight of taxation ... and if cast into new states, will tend to increase the hap-
piness of mankind, by rendering the purchase of land easy, and the possession of liberty
permanent; therefore . , , Resolved, that a committee be appointed to report the territory
lying without the boundaries of the several states ... and also to report an establishment
for a land office. [Id. p. 558, reported in the writing of James McHenry.]

There was also serious discussion and later acquisition by the then technically non-
existent federal government of land originally held by the colonial governments. [Id.
at 562-63.] As the years progressed, the goal remained the same, a proper determina-
tion of a simple method of disposing of the western lands. "That an advantageous
disposition of the western territory is an object worthy the deliberation of Congress."
[Id. February 14, 1786, at p. 68.) In February, 1787, the Continental Congress con-
tinued to hold discussions on how to dispose of all western territories. As part of the
basis for such disposal, it was determined to divide the new northwestern territoriP.s
into medians, ranges, townships, and sections, making for easy division of the land,
and giving the new owners of such land a certain number of acres in fee. [Journal of
Congress, p. 21, February, 1787, and Committee Book, Papers of the Continental
Congress, No. 190, p. 132 (1788).) In September of that same year, there were more
discussions on the methods of disposing the land. In those discussions, there were
debates on the validity and solemnity of the state patents that had been issued in the
past. [Id., No. 62, p. 546.] Only a week earlier, the Constitution was ratified by the
conventions of the states. Finally, the future Senate and House of Representatives,
though not officially a government for a1;.0ther one and a half years, held discussions
on the possible creation of documents that would pass the title of lands from the new
government to the people. In these discussions, the first patents were created and
atified, making the old land-boc, or land-allodial charters of the Saxon nobles, 750
ears earlier, and the letters patent of the Magna Carta, guidelines by which the land
~.~ uld pass to the sovereign freeholders of America. [Id., July 2, 1788, pp. 277-286.]
As part of the method by which the new United States decided to dispose of its ter-
ritories, it created in the Constitution an article, section, and clause, that specifically
dealt with such disposals. Article IV, Section III, Clause II, states in part, "The Con-
'gress shall have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States." Thus,
Congress was given the power to create a vehicle to divest the federal government of

f all its right and interest in the land. This vehicle, known as the land patent, was to
Memorandum of Law, History, Force & Effect of the Land Patent 37
 forever divest the federal government of its land and was to place such total ownership
in the hands of the sovereign freeholders who collectively created the government. The
Tand patents issued prior to the initial date of recognition of the United States Con-
stitution were ratified by the members of Constitutional Congress. Those patent::
created by statute after March, 1789, had only the power of the statutes and the Con-
gressional intent behind such statutes as a reference and basis for the determination
of their powers and operational effect originally and in the American sy..,tem of land
ownership today. / L,...,..l~ l';},~ --~ .,{t,rd- )
There have been dozens of statutes enacted [pursuant to Art. IV, Sec. Ill, CI. II].
Some of these statutes had very specific intenti of aiding soldiers of wars, or dividing
lands in a very small region of one state, but all had the main goal of creating in the
sovere!81_!s-freeholders on their lands a status in which they were beholden to no
.. lord or supe~me of the statutes include those bracketed b~Io;.: [f2-Sfa'C39i,
-f. 37iliCong., Sess. II, Ch. 75, (1862) (the Homestead Act); 9 Stat. 520, 31st Cong.,
Sess. I, Ch. 85, (1850) (M.ilLtary Bounty Service Act); 8 Stat. 123, 29th Cong., Sess.
II, Ch. 8, (1847) (~ct to raise ~itional military force and for other pumoses); 5 Stat.
444, 21st Cong., Sess. II, Ch. 30 (1831); 5 Stat. 51, 18th Cong., Sess. I, Ch. 174,
(1824); 5 Stat. 52, 18th Cong., Sess. I, Ch. 173, (1824); 5 Stat. 56, 18th Cong., Sess.
I, Ch. 172, (1824); -~ Stat. 566, 16th Cong., Ses_s. I, Ch. 51, (1820) (th,e major land pa-
tent_l_tatute enacted to dispose ot:...latllll}; 2 Stat. 748, 12th Cong., Sess. I, Ch. 99,
( (1812); 2 Stat. 728, 12th Cong., Sess. I, Ch. 77, (1812); 2 Stat. 716, 12th Cong., Sess.
( I, Ch. 68, (1812) (the Act establishing the General Land-Office in the Department of
\ the Treasury); 2 Stat. 590, 11th Cong., Sess. II, Ch. 35, (1810); 2 Stat. 437, 9th
· Cong., Sess. II, Ch. 34, (1807); and 2 Stat. 437, 9th Cong" Sess. II, Ch. 31, (1807).)
, These, of course, are only a few of the statutes enacted to dispose of public lands to
· ·>)the sovereigns. One of these acts however, was the main patent statute in reference tc
-~ ( tpc..iutent .G.~E,P-ss.had whe!!_E.reating th~~~ents. That statute is 3~~•.?..@z}up~
· In order to understand the validity of a patent, in today's property law, it ts
necessary to turn to other sources than the acts themselves. These sources include the
Congressional debates and case law citing such debates. For the best answer to this
question, it is necessary to turn to the Abn"dgment of the Debates of Congress, Mon-
day, March 6, 1820, in the Senate, considering the topic "The Public Lands." This
abridgment and the actual debates founci in it concern one of the most important of
\.the land patent statutes (3 Stat. 566, 16th Cong., Sess. I, Ch, 51, Stat._L (April 24,
/~
In this important debate, the reason for such a particular act in general and the
protections afforded by the patent in particular were discussed. As Senator Edwards
states:

But, he said, it is not my purpose to discuss, at large, the merits of the proposed
change. I will, at present, content myself with an effort, merely, to shield the present set-
tlers upon public lands from merciless speculators, whose cupidity and avarice would u.n-
qucstionably be tempted by the improvements which th05C settlers have made with the
sweat of their brows, and to which they have been :ncouragcd by the conduct of the govern-
ment itself; for though they might be considered as embraced by the letter of the law which
provides against intrusion on public lands, yet, that their case has not been considered by
the Government as within the mischiefs intended to be prevented is manifest, not only from
the forbearance to enforce the law, but from the positive rewards which others, in their
38 Land Patents
 situation, have received, by the several laws which have heretofore been granted to them by
the same right of preemption which I now wish extended to the present settlers. [Id. at 456. J

Further, Senator King from New York stated:

He considered the change as highly favorable to the poor man; and he argued at some
length, that it was calculated to plant in the new country a population of independent,
unembarrass~d freeholders ... that it would cut up speculation and monopoly; that the
money paid for the lands would be carried from the state or country fMm which the pur-
chaser should remove; that it would preven , the accumulation of an alarming debt, which
experience proved never would and never could be paid. [Id. at 456-57.J

In other statutes, the Court recognized much of these same ideas. In United States
v. Reynes [9 How . (U.S.) 127 (1850)), the Supreme Court stated:
The object of the Legislation is manifest. It was intended to prevent speculation by deal-
ings for rights of preference before the public lands were in the market. The speculator ac-
quired power over choice spots, by procuring occupants to seat themselves on them and
who abandoned them as soon as the land was entered under their preemption rights, and
the speculation accomplished. Nothing could be more easily done than this, if contracts of
this description could be enforced. The act of 1830, however, proved to be of little avail;
and then came the Act of 1838 (5 Stat. 251) which compelled the preemptor to swear that
he had not made an arrangement by which the title might inure to the benefit of anyone ex-
cept himself, or that he would transfer it to another at any subsequent time. This was
preliminary to the allowing of his entry, and discloses the policy of Congress. [Id. at 154.]

"It is always to be borne in mind, in construing a congressional grant, that the act
by which it is made is a law as well as a conveyance and that such effect must be given
to it as will carry out the intent of Congress. That intent should not be defeated by ap-
plying to the grant the rules of common law ... words of present grant, are operative,
if at all, only as contracts to convey. But the rules of common law must yield in this, as
in other cases, to the legislative will." [Missouri, Kansas and Texas Railway Company
v. Kansas Pacific Railway Company, 97 U.S. 491, 497 (1878).] The administration of
the land system in this country is vested in the Executive Department of the govern-
ment, first in the Treasury and now in the Interior Department. The officers charged
with the disposal of the public domain under the authority of acts of Congress are re-
quired and empowered to determine the construction of those acts so far as it relates
to the extent and character of the rights claimed under them, and to be given,
through their actions, to individuals. This is a portion of the political power of the
government, and courts of justice must never interfere with it. [Marks v. Dickson, 61
U.S. (20 How) 501 (1857); see also Cousin v. Blanc's Ex., 19 How. (U.S.) 206, 209
(1856).) "The power of Congress to dispose of its land cannot be interfered with, or its
iexercise embarrassed by any state legislation; nor can such legislation deprive the
l grantees of the United States of the possession and enjoyment of the property granted
/ by reason of any delay in the transfer of the title after the initiation of proceedings for
~s acquisition." [Gibson v. Chouteau, 13 Wal. (U.S.) 92, 93 (1871).)
State statutes that give lesser authoritative ownership of title than the patent can
not even be brought into federal court. [Langdon v. Sherwood, 124 U.S. 74, 81
(1887).) These acts of Congress making grants are to be treated both law and grant,
and the intent of Congress when ascertained is to control in the interpretation of the
law. [ Wisconsin C.R. Co. v. Forsythe, 159 U.S. 46 (1895).) The intent to be searched
for by the courts in a government patent is the intent which the government had at
that time, and not what it would have been had no mistake been made . The true
Memorandum of Law. History. Force & Effect of the Land Patent 39
 meaning of a binding expression in a patent must be applied , no matter where such
expressions are found in the document. It should be construed as to effectuate the
primary object Congress had in view, and obviously a construction that gives effect to
a patent is to be preferred to one that renders it inoperative and void. A grant must be
interpreted by the law of the country in force at the time when it was made. The con -
struction of a federal grant by a state court is necessarily controlled by the federal
decisions on the same subject. The United States may dispose of the public lands on
such terms and conditions, and subject to such restrictions and limitations as in its
judgment will best promote the public welfare , even if the condition is to exempt the
land from sale on execution issued or judgment recovered in a state court for a debt
contracted before the patent issues . [Miller v. Little, 47 Cal. 348, 350 (1874).] Con-
gress has the sole power to declare the dignity and effect of titles emanating from the
United States and the whole legislation of the government must be examined in the
determination of such titles. (Bagnell v. Broderick, 38 U.S. 436 (1839).] It was clearly
the policy of Congress, in passing the preemption and patent laws, to confer the
benefits of those laws to actual settlers upon the land. [Close v. Stuyvesant, 132 Ill.
607, 617 (1890).] The intent of Congress is manifest in the determinations of mean-
ing, force, and power vested in the patent. These cases all illustrate the power and
dignity given to the patent. It was created to divest the government of its lands, and to
act as a means of conveying such lands to the generations of people that would occupy
those lands. This formula , "or his legal representatives," embraces representatives of
the original grantee in the land, by contract, such as assignees or grantees, as well as
by operation of law, and leaves the question open to inquiry in a court of justice as to
the party to whom the patent, or confirmation, should enure. [Hogan v. Page, 69
·~
U.S. 605 (1864).] The patent was and is the document and law that protects the set-
tler from the merciless speculators, from the people that use avarice to unjustly
benefit themselves against an unsuspecting nation. The patent was created with these
high and grand intentions, and was created with such intentions for a sound reason.
"The settl~r~ as a rule seem to have been poor persons, and presumably without the
necessary funds to improve and pay for their land, but it appears that in every case
where the settlement was made under the preemption law, the settler ... entered and
paid for the land at the expiration of the shortest period at which the entry could be
made ... " [Close v. Stuyvesant, 132 Ill. 607, 623 (1890).] We must look to the
beneficient character of the acts that created grants and patents and the peculiar ob-
jects they were intended to protect and secure. A class of enterprising, hardy, and
most meritorious and valuable citizens had become the pioneers in the settlement and
improvement of the new and distant lands of the government. [McConnell v. Wilcox,
1 Scam. (Ill.) 344, 367 (1837) .] "In furtherance of what is deemed a wise policy, tend-
ing to encourage settlement, and to develop the resources of the country, it invites the
heads of families to occupy small parcels of the public land ... To deny Congress the
power to make valid and effective contract of this character ... would materially
abridge its power of disposal, and seriously interfere with a favorite policy of the
government, which fosters measures tending to a distribution of the lands to actual
settlers at a nominal price." [Miller v. Little, 47 Cal. 348, 351 (1874).] The legislative
acts, the Statutes-At-Large, enacted to divest the United States of its land and to sell
that land to the true sovereigns of this republic, had very distinct intents. Congress
40 Land Patents
 I recognized that the average settler of this nation would have little money, therefore
Congress built into the patent, and its corresponding act, the understanding that
these lands were to be free from avarice and cupidity, free__from the ~5culators who
preyed on the unsuspecting nation, and _fQrever under the control and ownership of
the freeholder, who by the sweat of his brow made the land produce the food that
would feed himself and eventually the nation. Even today, the intent of Congress is to
·maintain a cheap food supply through the retention of the sovereign farmers on the
land. [ United States v. Kimball Foods, Inc . . 440 U.S. 715 (1979); see also Curry v.
Block, 541 F. Supp. 506 (1982).] Originally, the intent of Congress was to protect the
sovereign freeholders and create a permanent system of land ownership in the coun-
try. Today, the stated intent of Congress is to retain the small family farm and utilize
the cheap production that comes from those farms. In order to accomplish the goal in
each of these situations, it has been necessary to protect the sovereign on his parcel of
and, and insure that he remain in that position. The land patent and the patent ac~
were created to accomplish these goals. In other words, the patent or title deed being
regular in its form, the law will not presume that such was obtained through fraud of
the public right. This principle is not merely an arbitrary rule of law established by
the courts, rather it is a doctrine which is founded upon reason and the soundest prin-
ciples of public policy. It is one which has been adopted in the interest of peace in the
society and the permanent security of titles. Unless fraud is shown, this rule is held to
apply to patents executed by the public authorities. [State v. Hewitt Land Co., 134 P.
474, 479 (1913).) It is therefore necessary to determine exact power and authority con-
tained in a patent.
Legal titles to lands cannot be conveyed except in the form provided by law.
[McGa"ahan v. Mining Co., 96 U.S. 316 (1877).) Legal title to property is contingrnt
upon the patent issuing from the government. [Sabo v. Horvath, 559 P. 2d 1038, 1040
. I nAka. 1976).] "That the patent carries the fee and is the best title known to a court of
. ·--f"
'x_. ,.,4f ·~ / law is the settled doctrine of this court." [Marshall v. Ladd, 7 Wall. (74 U.S.) 106
' (1869).) "A patent issued J>yJhe governm~~( ~[_~e .!l._~ited States is legal and~-
~~~~b~-~ v_i-~en9U>f !itle__!g_!ll~..!~1:1.~--~es~_!:i_b~thereinL,No equitable interest, h~'twer
strong, to land described in such a patent, can_Qrevail at law, against the patent."
~nd Patents, Opinions --~f the United States Attorney General's Office, (Sept.
1869).) ".-A- patent is the highest evidence of title, and is conclusive against the govern-
ment and all claiming under junior patents or titles, until it is set aside or annulled by
some judicial tribunal." [Stone v. United States, 2 Wall. (67 U.S.) 765 (1865).] The
patent is the instrument which, under the laws of Congress, passes title from ~
United States and the patent when regular on its face, is conclusive evidence of title in
the patentee. When there is a confrontation between two parties as to the superior
legal title, t:pe pa1enLJs conclusive evidence as to ownership. [Gibson v. Chouteau, 13
Wall. 92 (1871).) Congress having the sole power to declare the dignity and effect of
its titles has declared the patent to be the superior and conclusive evidence of the legal
title. [Bagnell v. Broderick, 38 U.S . 438 (1839).) "Issuance of a government patent
granting title to land is 'the most accredited type of conveyance known to our law'."
[United States v. Creek Nation, 295 U.S . 103, 111 (1935); see also United States v.
Cherokee Nation, 474 F. 2d 628, 634 (1973).] The patent is prim.a facie conclusive
evidence of the title . [Marsh v. Brooks, 49 U.S. 223, 233 (1850).J A patent, once
Memorandum of Law, Hi.Jtory, Force & Effect of the Land Patent 41
 issued, is the highest evidence of title, and is a final determination of the existence of
all facts. [Walton v. United States, 415 F. 2d 121, 123 (10th Cir. 1969); see also
United States v. Beaman, 242 F. 876 (1917); File v. Alaska, 593 P. 2d 268, 270
(1979).] When the federal government. grants land via a patent, the pa~ is the
highest evidence of title. Patent rights to the land is the title in fee. [City of Los
Angeles v. Board of Supervisors of Mono County, 292 P. 2d 539 (1956)); the patent is
the fee simple. [Squire v. Capoeman. 351 U.S. 1, 6 (1956)]; ~nd the patent is required
to carry the fee. [Carter v. Ruddy, 166 U.S. 493, 496 (1896); see also Klais v.
Danowski, 129 N.W. 2d 414, 422 (1964)); interposition of the patent is interposition
1 of the fee title.
;:= The land patent is the muniment of title, such title being absolute in its nature,
--=--------
' making the sovereigns absolute freeholders on their lands. Finally, the patent is the
only evidence of the legal fee simple title. [McConnell v. Wilcox, 1 S~m. (Ill.) 381,
396 (1837).] All these various cases and quotes illustrate one statement that should be
thoroughly understood at this time. The ~tent is the highest evidence of title and is
conclusive of the ownership of land in courts of competent jurisdiction. This,
however, does not examine the methods or possibilities of challenging a land patent.
~ In Hooper et. al. v. Scheimer (64 U.S. (23 How.) 235 (1859)], the United States
Supreme Court stated, "I affirm that a patent is unimpeachable at law, except,
. perhaps, when it appears on its own face to be void; and the authorities on this point
i are so uniform and unbroken in the courts, Federal and State, that little else will be
necessary beyond a reference to them." [Id. at 240 (1859).] A patent can not be
declared void at law, nor can a party travel behind the patent to avoid it. [Id. at 242.]
1
A patent when attacked incidentally, cannot be declared void, unless it be procured
by fraOd, or is void on its face, or has been declared void by law. [Id.] A patent cannot
I be avoided at law in a collateral proceeding unless it is declared void by statute, or its
nullity indicated by some equally explicit statutory denunciations. [Id.] One perfect
on its face is not to be avoided, in a trial at law, by anything save an elder patent. It is
I not to be affected by evidence or circumstances which might show that the im-
/ peaching party might prevail in a court of equity. [Id. at 243.] A patent is evidence, in
a court of law, of the regularity of all previous steps to it, and no facts behind it can be
1
investigated. [Id.] A patent cannot be collaterally avoided at law, even for fraud. [Id.
at 245.] A patent, being a superior title, must of course, prevail over colors of title;
nor is it proper for any state legislation to give such titles, which are only equitable in
nature with a recognized legal status in equity courts, precedence over the legal title in
i a court of law. [Id. at 246.) The Hooper case has many of the maxims that apply to
/ the powers and possible disabilities of a land patent, however there is extensive case
· law in the area.
The presumptions arise, from the existence of a patent, evidencing a grant of land
from the United States, that all acts have been performed and all facts have been
shown, which are prerequisites to its issuance, and that the right of the party, grantee
therein, to have it issued, has been presetited and passed upon by the proper
authorities. [Green v. Barber, 66 N.W. 1032 (1896).] As stated in Bouvier's Law Dic-
tionary [Vol. II, p. 1834 (1914)]:
Misttpresentations knowingly made by the applicant for a patent will justify the govern-
ment in proceeding to set it uide, as it hu a right to demand a cancellation of a patent ob·
42 Land Patent.!
 tained by false and fraudulent misrepresentations. United StateJ v. Manufacturing Co.,
128 U.S. 673 (1888); but courts of equity cannot set aside, annul, or correct patents or
other evidence of title obtained from the United States by fraud or mistake, unless on
specific averment of the mistake or fraud, supported by clear and satisfactory proof; Max·
well Land Grant Cancellation, 121 U.S. 325 (1887). A bill in equity is the proper remedy;
United Statu v. Hughes, 11 How. (U.S.) 552 (1850); although a patent fraudulently ob-
tained by one knowing at the time that another person has a prior right to the land may be
set aside by an information in the . nature of a bill in equity filed b) the attorney of the
United States for the district in which the land lies; Id. A court of equity, upon a bill filed
for that purpose, will vacate a patent of the United States for a tract of land obtained by
mistake from the officers o{ the land offic.::, in order that a clear title may be transferred to
the previous purchaser; Hughu v. United Statu, 4 Wall. (U.S.) 232 (1866); but II. patent
for land of the United States will not be declared void merely because the evidence to
authorize its issue is deemed insufficient by the court; Mil/ilce11 v. Starling's LuJee, 16 Ohio
61. A state can impeach the title conveyed by it to a grantee only by a bill in chancery to
cancel it, either for fraud on the part of the grantee or mistake of law; and until so cancell-
ed, it cannot issue to any other party a valid patent for the same land. Chandler v.
Manufactun'ng Co., 149 U.S. 79 (1893).

Other cases espouse these and other rules of law. A patentee can be deprived of his
rights only by direct proceedings instituted by the government or by parties acting in
its name, or by persons having a superior title to that acquired through the govern-
ment. [Putnam v. Ickes, 78 F. 2d 223, cert denied 296 U.S. 612 (1935).] It is not suffi-
cient for the one challenging a patent to show that the patentee should not have
received the patent; he must also show that he as the challenger is entitled to it. [Kale
v. United States, 489 F. 2d 449,454 (1973).J A United States patent is protected from
easy third party attacks. [Fl!her v. Rule, 248 U.S. 314,318 (1919); see alsoHoofnagle
v. Anderson, 20 U.S. (7 Wheat.) 212 (1822).J A patent issued by the United States of
America so vests the title in the lands covered thereby, that it is the further general
:.)j'.· rule that, such patents are not open to collateral attack. [Thomas v. Union Pacific
Railroad Company, fJ~upp. 588, 596 (1956); see also State v. Crawford, 475 P.
2d 515 (Ariz. App. 1970).] A patent is prima facie valid, and if its validity can be at-
tacked at all, the burden of proof is upon the defendant. [State v. Crawford, 441 P. 2d
586,590 (Ariz. App. 1968).J ~ patent to land is the highest evidence of title and may
_/. not be collaterally attaciu:d. And Dredge v. Husite Company [369 P. 2d 676, 682
(1962)]. A patent is the act of a legally instituted tribunal, done within its jurisdiction,
and passes the title; such a patent is a final judgment as well as a conveyance and is
conclusive upon a collateral attack. Absent some facial invalidity, the patents are
presumed valid. [Murray v. State, 596 P. 2d 805, 816 (1979).] The government retains
no power to nullify a patent except through a direct court proceeding. [United States
v. Reimann, 504 F. 2d 135 (1974); see also Green v. Barker, 66 N. W. 1032, 1034
(1896).J The doctrine announced was that the deed, upon its face, purported to have
been issued in pursuance of the law, and was therefore only assailable in a direct pro-
ceeding by aggrieved parties to set it aside. Through these cases, it can be shown that
the patent which passes the title from the United States to the sovereigns, and was
created to keep the speculators from the land, is only assailable in a direct proceeding
for fraud or mistake. In no other situation is it allowable for the courts to simply
eliminate the patent. One question that may arise is what do the courts mean by a col-
lateral attack and what can be done by courts of equity if a collateral attack is
presented?
Memorandum of Law, History, Force & Effect of the Land Patent 43
 Perhaps the easiest means of defining a collateral attack is to show the converse
corrollary, or a direct attack on a patent. As was stated in the previous paragraphs, a
direct attack upon a land patent is an action for fraud or mistake brought by the
government or a party acting in its place. Therefore, a collateral attack, by definition,
I is any attack upon a patent that is not covered within the direct attack list. Perhaps
the most prevalent collateral attack in property law today is a mortgage or deed of
trust foreclosure on a color of title. In these instances, it is determined that the com-
/ plete title and interest in the land is purchased by the mortgagee or another in his
place. Such a determination displaces the pa~entee's ownership of the title without the
court ever ruling that the patent was acquired through fraud or mistake. This is
against public policy, legislative intent, and the overwhelming majority of case law.
, Therefore, it is now necessary to determine the patent's role in American property law
\ today to see what powers the courts of equity have in protecting the rights of the
~allengers of patents.
The attitude of the courts is to promote simplicity and certainty in title transac-
tions, thereby they follow what is in the chain of title and not what is outside. [Sabo v.
Horvath, 559 P. 2d 1038, 1044 (1976).] However, in equity courts, title under a patent
from the government is subject to control to protect the rights of parties acting in a
fiduciary capacity. [Sanford v. Sanford, 139 U.S. 290 (1891).] This protection
however does not include the invalidation of the patent. The determination of the
land department in matters cognizable by it, in the alienation of lands and the validity
of patents, cannot be collaterally attacked or impeached. [Id.] Therefore the courts
have had to devise another means to control the patentee, if not the patent itself. As
stated in Raestle v. Whitson [582 P. 2d 170, 172 (1978)], "'[he. land patent is the
/hlghest evidence of title and is immune from collateral attack. t!]lis does not preclude
· a court from imposing a constructive trust upon the patentee for the benefit of the
owners of an equitable interest." This then explains the most equitable way a court
may effectively restrict the sometimes harsh justice handed down by a strict court of
law. Equity courts will impose a trust upon the patentee until the debt has been paid.
AsJ!.as been stated, a patent can not be coll~terally attacked, therefore the land can
not be sold or taken by the courts unles.s th-kr~l_~ stron e · aud or mistake.
However, the courts can require the patentee to pay a certain amount at regu ar mter-
vals until the debt is paid, unless of course, there is a problem with the validity of the
debt itself. This is the main purpose of the patent in this growing epidemic of farm
foreclosures that defy the public policy of Congress, the legislative intent of the
\ Statutes-At-Large, and the legal authority as to the type of land ownership possessed
'· ..jp America. Why then is the rate of foreclosures on the rise?
Titles to land today, as was stated earlier in this memorandum, are normally in the
form of colors of title. This is because of the trend in recent property law to maintain
the status quo. The · rule in most jurisdictions, and those which have adopted a
grantor-grantee index in particular, is that a deed outside the chain of title does not
act as a valid conveyance and does not serve notice of a defect of title on a subsequent
purchaser. These deeds outside the chain of title are known as "wild deeds." [Sabo v.
Horvath, 559 P. 2d 1038, 1043 (1976); see :-'.lso Porter v. Buck, 335 So. 2d 369, 371
(1976); The Exchange National Bank v. Lawndale National Bank, 41 Ill. 2d 316, 243
N.E. 2d 193, 195-96 (1968).] The chain of title for purposes of the marketable title
44 Land Patents
 act, may not be founded on a wild deed. These stray, accidental, or interloping con-
veyances are contrary to the intent of the marketable title act, which is to simplify and
facilitate land title transactions. [Manson v. Berkman, 356 Ill. 20, 190 N.E. 77, 79
(1934).] This liberal construction of what constitutes a valid conveyance has led to a
thinning of the title to a point where the absolute and paramount title is almost im-
possible to guarantee. This thinning can be directly attributed to the constant use of
the colors of title. Under the guise of being the fee simple absolute, these titles have
operated freely, but in reality, they evidence something much different.
It was said in common law England, that when a title was not completely alienable
and not the complete title, it was not a fee simple absolute. Rather it was some type of
contingent conveyance that depended on the performance of certain tasks before the
title was considered to be absolute. In fact, normally the title never did develop into a
fee simple absolute. These types of conveyances were evidenced in part by the
operable words in the conveyance and in part by the manner in which the grantor
could reclaim the property. If the title automatically reverted to the grantor upon the
happening of a contingent action, then the title was by a fee simple determinable.
[Scheller v. Trustees of Schools of Township 41 North, 67 Ill. App. 3d 857, 863
(1978).] This is evidenced most closely today by deeds of trust in some states. If it re-
quired a court's ruling to reacquire the land and title, then the transaction and title
were held by a fee simple with a condition subsequent. [Mahrenholz v. County Board ·
of Trustees of Lawrence County, 93 Ill. App . 3d 366, 370-74 (1981).] This is most
closely evidenced by a mortgage in a lien or intermediate theory state. These analogies
may be somewhat startling and new to some, but the analogies are accurate. When a
mortgage is acquired on property, the mortgagee steps into the position of a grantor
with the authority to create the contingent estate as required by the particular fac+,.
This is exactly what the grantor in common law property law could acquire. All the
grantor had to do was choose a particular type of contingency and use the necessary
catch-words, and almost invariably the land would one day be returned due to a viola-
tion of that contingency. In today's pro_Eerty law, the color of title has little power to
Erotect the landowner. When the sovereign is unable to pay the necessary principal
and interest on the debt load, then the catch-words and phrases found in the deed of
trust or mortgage become operational. Upon the occurrence of that event, the mort-
gagee or speculator, having through a legal myth acquired the position of a grantor, is
in a position to either automatically receive the property simply by advertising and
selling it, or can acquire the position of the grantor and eventually the possession of
the property by a court proceeding. In common law, the grantor of a fee simple deter-
minable where the contingency was broken or violated, could automatically take the
land from the grantee holder, by force is necessary. If however, the grant was a fee
simple upon condition subsequent, the grantor, when the contingency was broken,
had to bring a legal proceeding to declare the contingency broken, to declare the
grantee in violation, and to order the grantee to vacate the premises. These situations,
though under different names and proceedings, occur every day in America. Is there
really any serious debate therefore, that the colors of title used today, with the crea-
tion of a lien upon the property, become fee simple determinables and fee simples
upon condition subsequent? Is this a legitimate method of ensuring a stable and per-
manent system of land ownership? If the color of title is weak, then how strong is a
Memorandum of Law, History . Force & Effect of the Land Patent 45
 mortgage or deed of trust placed on the property?
Fee simple estates may be either legal or equiitable . In each situation, it is the
largest estate in land that the law will recognize . '[Hughes v. Millers· Mutual Fire In-
surance Co., 246 S. W. 23 (1922).] If a mortgagee, upon the creation of a mortgage or
deed of trust, steps into the shoes of the grantor upon a conditional fee simple, does it
then mean the mortgagee has acquired one of the two halves of a fee simple, when
cases have shown the fee simple is onl.v evidenced by a patent? Actually, 1.:ourts have
held in many states that a mortgage is only a lien. [ United States v. Certain Interests
in Property in Champaign County, State of Illinois, 165 F. Supp. 474, 480 (1958).) In
·Illinois and other lien theory states, tl)e mortgagee has only a lien and not a vested in-
terest in the leasehold. [See also Fede;~iFarm Mortgage Corp. v. Ganswer, 146 Neb.
635, 20 N. W. 2d 689 (1945).] Even after a condition is broken or there is a default on
a mortgage, a mortgagee only has an equitable lien which can be enforced in proper
proceedings. [South Omaha Bank v. Levy, 95 N. W. 603 (1902).] Strict foreclosure
will not lie when mortgagor holds the legal title. [First National Bank v. Sargeant, 65
Neb. 394, 91 N.W. 595 (1902).] Mo~t_gagee cannot demand more than is legally du~.
[Morrill v. Skinner, 57 Neb. 164, 77 N. W. 375 (1898).] Mortgage conveys.no estate
but merely creates a Ii.en. [Barber v. Crowell, 55 Neb. 571, 75 N. W. 1109 (1898).)
Mortgage is mere security in form of conditional conveyance. [Speer v. Hadduclc, 31
Freeman (Ill.) 439, 443 (1863).] Assignments or conveyances of mortgages do not con-
vey the fee simple, rather they hold only security interest. These cases amply illustrate
that a mortgage or deed of trust is only a lien in lien and intermediate theory
states. Even in title theory of mortgages states, courts of equity have determined that
the fee simple title is not really conveyed, either in its equitable or legal state.
[See supra Barber, at 1110.] A fee simple estate still exists even though the property is
mortgaged or incumbered. [Hughes v. Millers' Mutual Fire Insurance Co., 246 S. W.
23, 24 (1922).) In fact, a creditor asserting a lien (mortgage) must introduce evidence
or proof that will clearly demonstrate the basis of his lien. [ United States v. United
States Chain Company, 212 F. Supp. 171 (N .D. Ill. 1962).] If a mortgagee, even in
the title theory states , has only a lien, yet when the mortgage or deed of trust is
created he has a fee simple determinable or condition subsequent, then obviously the
color of title used as the operative title has little force or power to protect the sovereign
freeholder. Nor can it be said that such a color of title is useful in the maintenance of
:;table and permanent titles. _!he patent, ~almost all cases, has been originally issued
to the first purchaser from the government. Theoretically then the public policy, Con-
gressional intent from the 1800s, and the Congressional intent of the last few decades
should protect the sovereign in the enjoyment and possession of his freehold. This
however is not the case. Instead, vast mortgaging of the land has occurred. The
agriculture debt alone has risen to over $220,000,000,000 in the past three decades.
This is in part due to the vast expansion of mortgaged holdings and in part due to the
rural sector's inability to repay existing loans requiring the increased mortgaging of
the land. This is in exact contradiction to the public policy and legislative intent of
maintaining stable and simplistic land records , yet marketable titles (colors of title)
were supposed to guarantee such records. [ Wiehe/man v. Messner, 83 N. W. 2d 800 ,
805 (1957) .] Colors of title are ineffective against mortgages and promote the in -
stability and complexity of the records of land titles by requiring abstracts and title in-
46 Land Patents
 surance simply to guarantee a marketable title. Worse, a practice has prevailed in .\
some of the states ... of permitting actions to determine titles to be maintained upon '
I' warrants for land (warranty deeds) and other titles not complete or legal in their
I character. This practice is against the intent of the Constitution and the Acts of Con-
I gress. [Bagnell v. Broderick, 38 U.S. 438 (1839).) Such lesser titles have no value in
1· actions brnught in federal courts notwithstanding a state legislature which may have
provided otherwise. [Hooper et. al. v. Sc Jz eimer, 64 U.S. (23 How.) 235 (1859) .J It is
in fact possible that the state legislatures have even violated the Supremacy Clause of
the United States Constitution. These a ~tions are against the intent of the Founding
Fathers and against the legislative intent of the Congressmen who enacted the
Statutes-At-Large creating the land patent or land grant. This patent or grant, since
\ the land grant has been stated to be another name for the patent , the terms being
\ synonymous [Northern Pacific Railroad Co. v. Barden, 46 F. 592, 617 (1891))
1, prevented every problem that was created by the advent of colors of title, marketable
\ titles, and mortgages. Therefore it is necessary to determine the validity of returning
, to the patent as the operative title. · ...., . = .. - .
~ t e n t s are issued (and theo~etically passe~) betw~en sovereigns ... a~d deeds are
~:_Su~ed b.y persons and private corporat10ns without those sovereign powers. c;i
(Jl".~'·
[Leading Fighter v. County of Gregory, 230 N.W. 2d 114, 116 (1975).) As was stated v )- ;- ~ ,
earlier, the American people in creating the Constitution and the government formed , ~ -r t)
under it, made such a document and government as sovereigns, retaining that status "'--i, ,.
even after the creation of the government. [Chisholm v. Georgia, 2 Dall. (U.S.) 419 I "'··
~(1793).] The government as sovereign passes the title to the American people creating J
: in them sovereign freeholders. Therefore, it follows that th~ American people, as i
/ sovereigns, would also have this authority to transfer t~e fe~ simple title, thro~gh the /
Lpatent, to others. Cases have been somewhat scarce m this area, but there ts some ·
·case law to reinforce this idea . In Wilcox v. Calloway [1 Wash . (Va.) 38, 38-41
(1823)], the Virginia Court of Appeals heard a case where the patent was brought up
or reissued to the parties four separate times. Some of the issuances of the patent
came before the creation of the Constitutional United States government, and some
occurred during the creation of that government. The courts determined the validity
of those patents, recognizing each actual acquisition as being valid, but reconciling
the differences by finding the first patent, properly secured with all the necessary re-
quisite acts fulfilled , carried the title . The other patents and the necessary acquisition
o a new patent each time yielded the phrase "lapsed patent;" a lapsed patent being
one that must be reacquired to perfect the title. [Id.] Subsequent patentees take sub-
ject to any reservations in the original patent. [State v. Crawford, 441 P. 2d 586, 590
(1968).]
y
,· ~ A patent regularly issued by the government is the best and only evidence of a
perfect title. The actual patent should be secured to place at rest any question as to
validity of entries (possession under a claim and color of title). [Young v. Miller, 125
So. 2d 257, 258 (1960).J Under the color of title act, the Secretary of Interior may be
required to issue a patent if certain conditions have been met, and the freeholder and
his predecessors in title are in peaceful, adverse possession under claim and color of
title for more than a specified period. [Beaver v. United States, 350 F . 2d 4, cert.
denied 387 U.S . 93 7 (1965).] A description which will identify the lands (and posses-
Memorandum of Law, History , Force & Effec t of the Land Patent 4 7
/} sion) is all that is necessary for the validity of the patent. [Lossing v. Shull, 173 S. W.
2d 1, 351 Mo. 342 (1943).] A patent to two or more persons creates presumptively a
tenancy in common in the patentees. [Stoll v. Gottbreht, 176 N.W. 932, 45 N.D. 158
(1920).] A patent to the original grantee or his legal representatives embraces the
/ representatives by contract as well as by law. [Reichert v. Jerome H. Sheip, Inc., 131
-so. 229, 222 Ala. 133 (1903).] A patent has a docble operation. In the first place, it is
· documentary evidence having the dignity of a record .of the evidence ('If the title or
such equities respecting the claim as to justify its recognition and later confirmation.
In the second place, it is a deed of the United States, or a title deed. As a deed, its
operation is that of a quitclaim, or rather of a conveyance, of such interest as the
United States possessed in the land, such interest in the land passing to the people or
sovereign freeholders. [63 Am. Jur. 2d §97, p. 566.] Finally, the United States
Supreme Court, in Summa Corporation v. California ex. rel. State Lands Commis·
sion, etc., [80 L. Ed. 2d 237 (1984)], made determinations as to the validity of a pa-
. tent confirmed by the United States Bureau of Land Management, based on a Mexi-
'y' can Land Grant, and acquired by the United States through the Treaty of Guadalupe
Hidalgo [9 Stat. 631 (1951)]. The State of California attempted to acquire land that
belonged to the corporation. The state maintained that there was a public trust ease-
ment granting to the state authority to take the land without compensation for public
use. The corporation relied in part on the intent of the treaty, in part on the intent of
the patent and the statute creating it, and in part on the requisite challenge date of
the patent expiring. The Summa Court followed the lengthy dissertation of the dissen-
ting judge on the California Supreme Court [see 31 Cal. 3d 288, dissenting opinion] in
determining that the patent, which had been the apparent operative title throughout
the years, was paramount and the actions by the state were against the manifest
weight of the Treaty and the legislative intent of the patent statutes. [Id. at 244-46.]
In each of these cases it it stated that the patent, through possession, or claim and col-
or of title, or through the term "his heirs and assigns forever," or through the
necessary passage of title at the death of a joint tenant or tenant in common, is still
the operable title and is required to secure the peaceful control of the land. These
same ideas can also apply to state patents for lands that went to the state or remained
in the hands of the state upon admission into the Union. [Oliphant v. Frazho, 146
N. W. 2d 685, 686-87 (1966); Fiedler v. Pipers, 107 So. 2d 409, 411-412 (1958).] Not
even the state could be heard to question the validity of a patent signed by the gover-
nor and the Register of the State Land Office. No government can object to the intent_
and creation of a patent after such is issued, u~less issued through fraud or mistake.
The patent, either federal or state, had an intent to create sovereign freeholders on
the land protected from the speculators (any lending institution speculates upon
land), and a public policy to maintain a simplistic, stable and permanent system of
land records. Land patents were designed to effectively insure that intent and poli_£y
were retained, Colors of title can not provide this type of stability, since such titles are
powerless against liens, mortgages, when the freeholder is unable to repay principal
and interest on the accompanying promissory note. Equity will entertain jurisdiction
at the instance of the owner in fee of lands tn remove a cloud upon his title created by
the sale of the premises and a deed issued thereto under a decree of foreclosure of a
mortgage thereon [Hodgen v. Guttery, 58 Free. (Ill.) 431, 438 (1871)]. Though this
48 Land Patents
 case dealt with an improper sale of land covered by a patent, any forced sale of lands
( covered by a patent is improeer in view O!, __~~e- po]~ a~.( ~~ntent- ·of--Congre~ ..
Equity however will protect the mortgagee who stands to lose his interest in the prot;>-
erty, thereby requiring a trust to be created until the debt is erased, making partners
of the creditor and debtor. What then exists is a situation where the patent should be
redeclared (confirmed or reissued), to protect the sovereign freeholder and to
reinstitute the policy and intent of Congress. 1]1e._.Q~tent as_the paramount title, fee
's1mple absolute, can not be collaterally attack3d, but when a debt can not be paid im -
./ f y mediately placing the creditor in jeopardy, the courts will impost a constructive trust
/ until the new "partners" can mutually eliminate the debt. If the debt can not be
·satisfactorily removed, it is still possible, considering the present intent of the govern-
ment, to maintain sovereign freeholders on the property immune from the loss of the
land, since it is Congress' declared intent to keep the family farm in place. The use of
colors of title to act as the operative title is inappropriate considering the rising
number of foreclosures and the inability of the colors of title to. restrain a mortgage or
en. However, the lending institutions, speculators on the land, maintain that the
·;:;k_ ublic policy of the country includes the eradication of the sovereign freeholder in th~
,. rural sector in an effort to implant upon the country large corporate holdings. This
~ ast area must be effectively met and eliminated.
To those who framed the Constitution, the rights of the states and the rights of the
people were two distinct and different things. Throughout their debates they had two ·
objects foremost in their minds. First, they sought to create a strong and effective na-
tional government. Second, they set out to protect the people and their rights from
usurption and tyranny by government. The people's liberties and individual rights
' · a·nd safeguards were to be kept forever beyond the control and dominion of the
' legislatures of the states, whom they distrusted, and against whom they so carefully
·~ uarded themselves. If such control and dominion and unlimited powers were given
to a few legislatures they could override every one of the reserved rights covered by the
first ten amendments (the Bill of Rights); they could change the government of
'\ limited powers to one of unlimited powers; they could declare themselves hereditary _,
" . _ rulers; they could abolish religious freedom; they could abolish free speech and the
' right of the people to petition for redress; they could not only abolish trial by jury, but
, even the right to a day in court; and most importantly they could abolish free
sovereign ownership of the land. The whole literature of the period of the adoption of
the Constitution and the first ten amendments is one great testimony to the insistence
that the Constitution must be so amended as to safeguard unquestionably the rights
and freedom of the people so as to secure from any future interference by the new
I government, matters the people had not already given into its control, unless by their
~- own consent. [United States v. Sprague, 282 U.S. 716, 723-726 (1930).] The problem
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 with allodial
sovereign ownership lies with the state legislatures that created laws, or marketable ti-
tle acts, that claimed to enact new simplistic, stable land titles and actually created a
watered-down version of the fee simple absolute that requires complicated tracing
and protection, and is ineffective against mortgage foreclosures. None of these prob·
fems would occur if the patent were the operable title again, as long as the sovereigns
Memorandum of Law, History, Foret & Effect of the Land Patent 49
 recognized the powers and disabilities of their fee simple title. The patent was meant
to keep the sovereign freeholder on the land, but the land was also to be kept free of
debt, since that debt was recognized in 1820 as u~!epayable, and today is unrepay-
·secfor of
able. The redeclaration of the patent is essential in the protection.of Ilicfrural
- --
sovereign freeholders, bu·t also essential is the need to impress the state legisl::itures
that have strayed from their enumerated powers with the kr,nwledge that they have
· enacted laws that have defeated the intent and goal of man since the Middle Ages.
That intent, of course, is to own a small tract of land absolutely, whethe~and-b.Qf._ .
; or patent, on which the freeholder is beholden to no lord or superior. To~ pateQt
J makes sovereign freeholders of each person who owns his/her land. A return to the
1
patent must occur if those sovereign freeholders wish to protect that land from the
/ ~nroachment of the state legislatures and the speculators that benefit from such
lJegislation.

-- - --·-·----- --'

----- ~-·-···------·- -·- ·- - -·

50 Land Patents
 .,,,
/ -. __ _...... --· .... ·---·-· ...... -·... -

/
,...,,. SECTION IV
./',.
. ,,..
// CONCLUSION \
I
AS HAS BEEN SEEN, Man is always striving to protect his rights the most dear bein~.
the absolute right to ownership of the land. This right was guaranteed by the land pa-'
tent, the public policy of the Congress, and the legislative intent behind the Statutes-
At-Large. ~-1:l~!!_~_hts must be reacguire~...0ro~~edeclaration of th~ate1!-L!!?
the color of title claimant's name, based on his color of title and possession.
Wffhsucfi reborn rights, th.; l ~ s protected from the forced sale because of delin-
quency on a promissory ~ate and foreclosure on the mortgage. This protected land
will not eliminate the debt, a trust must be created whereby "partners" will work \
together to repay it. These rights must be recaptured from the state legislated laws, or /
the freedoms guaranteed in the Bill of Rights and Constitution will be lost. Once lost, :

\ those rights will be exceedingly hard to reclaim, and quite possibly, as Thomas Jeffer-j
son said, the children of this generation may someday wake up homeless on the la,96
their forefathers founded. _ _ _ . /,'

----------------- ----
.._____, . ,..._,..

SECTION V

BRIEF IN SUPPORT OF COMMON LAW LIENS

IT HAS BEEN STATED that a common law lien is of no value in the legal and business
community today. This is in part because of the current misconception and confusion
which surrounds a common law lien and also because of confusion over the extent to
which it can be used in protecting an interest a person has in the property of another.
It is important first of all to understand how common law fits into the scheme of the
American legal system. Only then can one understand how a common law lien works.
The common law includes those principles, usages and rules of action applicable to
the government and security of person and property which do not rest for their
authority upon any express and positive declaration of the will of the legislature. [1
Kent Commentaries, 471.] As distinguished from law created by the enactment of the
legislature, the common law comprises the body of those principles and rules of action
relating to the government and security of persons and property, which derive their
authority solely from usages and customs of immemorial antiquity (particularly the
ancient unwritten law of England), or from the judgments and decrees of the courts
recognizing, affirming , and enforcing such usages and customs. [Western Union
Telegraph Company v. Call Publishing Company, 181 U.S. 765, 770 (1901).) As
such, common law is the law of the land through the United States Constitution. In
Article III. Section II, the Constitution states that: "The judicial power shall ex-
Memorandum of Law, History. Force & Effect of the Land Pate1tt 51
 tend to all Cases, in Law and Equity, arising under this Constitution.'.' The Constitu-
tion was founded on the basic principles of common law known to the forefathers at
the time of the Constitutional Convention. Unless a state or federal statute specifically
overrules or alters how a segment of the common law is applied, the common law
principles in any area to be analyzed will still apply through their continued discus·
sion tj· the courts. As stated in the Illinois case of Robben v. Obering [279 F. 2d 381
(7th Cir. 1960)], the common law is in full force and effect in Illinois unless repealed
by statute. General Assemblies have the po'Ver to broaden or restrict common law
concepts, but until such actions are taken, the common law is as much a part of the
state, where it has not been expressly abrogated by statute, as the statutes themselves.
[Karlson v. Murphy, 56 N.E. 2d 839, 387 Ill. 436 (1944); People ex rel. Board of
Trustees of University of lllinois v. Ba"ett, 46 N.E. 2d 951, 382 Ill. 321 (1943).] In
other words, the common law of England is the basis of common law in the states,
and such is the law of those states unless altered by constitution or statute. [Mudge v.
Mitchell Hutchins and Co., 54 N.E. 2d 708, 322 Ill. App. 409 (1944); Heineman v.
Hermann, 52 N.E. 2d 263, 385 Ill. 191 (1943).) The question then is whether a par-
p~ular area of common law, specifi~ally liens, has been altered by the passage of
statutes by any state legislatures, smce the federal legislature has not yet passed a law
~ abolishes common law liens in America.
In most states common law liens have yet to be determined antiquated and then
eliminated by statute. In some, the common law lien has been recognized by statute
although the principles for such a lien are defined by its parameters in the common
law. [See 42 Olcla.S. 1941 Sec. 91. The common law lien in Oklahoma is reiterated by
the statute. Williamson v. Winningham, 186 P. 2d 644, 650 (Okla. 1947).) Thus, in
determining whether the common law lien still exists in a particular state, the
judiciary and legal professions need only look to see if the legislature of that state has
legislatively abolished the lien. If such a statute has been passed, then that state's
courts need only declare a common law lien null and void and any such lien which was
filled can be immediately removed through equitable proceedings in the court. If no
such statute has ever been passed, then the common law lien must be ·ven full force
an e ec assummg e necessary en ena has been met in creating the lien.
-
Therefore, the next question is what are the proper circumstances under which a com-
mon law lien can be filed and what are the rights under such a lien.
. Liens can be created through only a few specific actions, those being, by contract,
by statute, or by operation of law. Liens created by contract include mortgages which
also are created in part by statute. Other liens created by statute include mechanic's
liens. Liens created by operation of law however are extremely limited in quantity,
especially the different types of common law liens. [ Williamson v. Winningh~m. 186
P. 2d 644, 650 (Okla. 1947); Cincinnati Tobacco Warehouse Co. v. Leslie, 117 Ky.
478, 78 S. W. 413 (1904); Gardner v. Lefevre, 146 N. W. 653, 654 (1914).) These types
of liens simply reinforce the idea that liens can only arise by some agreement, statute
or some fixed rule of law. [Sullivan v. Sudialc, 333 N .E. 2d 60, 30 Ill. App. 3d 899 (Ill.
App. 1975); Unger v. Checker Taxi Co., r14 N.E. 2d 219, 30 Ill. App. 2d 238 (Ill.
App. 1961).) Trade or commerce may act to create a common law lien. [See Supra,
Sullivan, at 899.) Liens, however, can not be created by the courts [Deitchman v. Cor-
ach, 71 N.E. 2d 367, 330 Ill. App. 365 (Ill. App. 1947)), not even from a sense of
52 Land PatentJ
 justice and equity. [In re Frentress · Estate 89 N. W. 2d 367, 370 (Ia. 1958).) American
Jurisprudence describes a common law lien as the right of one person to retain in his
possession that which belongs to another until certain demands of the person are
satisfied. The basis for a common law lien for materials and services anses when the
~ i s entitled to be reimbursed for labor and materials which have enhanced the
value of the property on which the lien is claimed; and, a contractual relation, even if
only by implication, must exist between the owner of the property and the person
claiming the lien. [51 Am. Jur. §20.] In the absence of a specific agreement, if a party
has bestowed labor and skill on a chattel bailed to him for such purpose, and thereby
improved it, he has by general law a lien on it for the reasonable value of his labor or
he has the right to retain it until paid for such skill and labor. [Drummond Carriage
Co. v. Mills, 74 N.W. 966,967 (Neb. 1898).) A mechanic of any ki.n d has a lien upon
all personal property, which is not a mechanic's lien, for manufacture or repairs while
it remains in his possession. Thus, the Drummond Court said:
If property is delivered to a person, to be by his skill and labor, or by adding thereto
property of his, enhanced in value, and he performs the labor or adds his own property to
that delivered, he may retain possession of it until he is paid for his labor and services. This
is the doctrine of common law, and the right is usually denominated as a "common law"
lien and it exists under a state of facts such a~ we have just detailed. [Id. at 968.J
It has been determined that where statutory and written contractual agreements are
not controlling, a person lawfulJy in possession and making a repair by labor or skill
for the protection or improvement of a thing has a lien upon such property. [See
Supra Williamson, at 650; Jones V; Bodkin, 172 Okla. 38, 44 P. 2d 38 (1935).] Such a
lien is a charge upon the property itself and not the people interested in the property.
[See Supra Williamson, at 650; Nichols v. O", 63 Colo. 333, 166 P. 561 (191'/J;
Boston and Kansas City Cattle Loan Co'. v. Dickson, 11 Okla. 680, 69 P. 889 (1902).]
/, As a general rule, common law liens attach to th
.Qwners 1p, an override all other rights in the property, whereas liens created by con-
Jract or statute are subordinate to all existing rights therein. [51 Am. Jur., §21.] Such
a lien is a qualified right [33 Am. Jur. 419, §2], a proprietary interest in the property
of another. [City oJ SanTord v. McCleland, 121 Fla. 253, 163 So. 513 (1935); Small v. ·
Robinson, 69 Me. 425 (1879).] The law gives the right to hold such property only until
the satisfaction of a debt to a particular thing. [Peck v. Jenness, 7 How. (U.S.) 612
(1849).] Thus, the first general principle of common law liens has been defined.
1,- . The next principle is the requirement of possession. The right of a common law lien
is based directly on the idea of ossession, and it is indis ensable that the one claim-
~g lt__ have an indepen ent and exclusive possession of the propertr:._ [51 Am. Jur.
§21.] Possession is such a necessary element of a common law lien that once it is
voluntarily surrendered by a creditor, the lien is immediately extinguished. [William-
son v. Winningham, 186 P. 2d 644, 650 (Okla. 1947).] Possession for common law
liens can be either actual or constructive. [Id. See also Robert v. Jacks, 31 Ark. 597
(1876); Marston v. Miller, 35 Me. 153 (1852); Stewart v. F'lowers, 44 Miss.
513 (1870).] Statutory liens often exist where the creditor does not have possession of
the property sought to be subjected to a lien; thus the statutory lien differs from the
lien at common law. [See Supra Williamson, at 650.J "At common law there can be
no lien without possession. It is there defined , a right in one man to retain that is in
Memorandum of Law, History, Force & Effect of the Land Patent 53
possession belonging to another, ti11 certain demands or
him, the person in posses-
sion, are satisfied." [Peck v. Jenness, 7 How. (U.S.) 612, 620 (1849).] "Where posses-
sion is actua11y, or in the eyes of the law, retained and the property preserved or im-
proved by the performance of labor and the furnishing of materials a lien of the com-
mon law exists and endures without the necessity of filing a lien statement if an action
is commenced within limitations upon the f'.)rincipal obligation as well as witl;in the
time specified by statute for preservaUon of the lien." [Id. a.. 551. See also Robinson
v. Exchange National Bank of Tulsa, 31 F. Supp. 350 (1940).) The great difference
between the equitable and common law lien is that the former is nofcondrtlonedupcm
the possessfunoftlie"Uungsoughtfooechar ed while ossession for . .
solutely essentia Gregory v. orris, 96 U.S. 619 (1877).) "[I]t is indispensable to
e existence of a common law lien that the party who claims it should have and retain
an independent exclusive, and continuous possession of the property; the right to the
lien is based directly upon such possession." [Yellow Manufacturing Acceptance
Corp. v. Bristol, 236 P. 2d. 939, 946 (1951).)
A common law lien is lost by the lienholder voluntarily and unconditionally parting with
possession or control of the property to which it attaches, and such a lien cannot be restored
thereafter by resumption of possession. However, the possessory lien is not necessarily waiv-
ed or destroyed u between the parties where there is an intention to preaerve the lien, the
lienholder only conditionally parting with the property, u where by special agreement he
allows the owner to take the property into his possession without prejudice to the lien. But
such a surrender of possession under such an agreement will destroy the lien u to third per-
sons ... Priority of a possessory or nonpossessory lien over that of a chattel mortgage is not
lost where the property is taken from the actual possession of the lien claimant without hi.r
con.,ent by force or fraud, where the property is taken from him involuntarily .. . [Id. at
947.]
Such a lien arises only when possession of property is obtained, and exists only so
long as it is retained . . . One in possession of property under a lien is the owner of the
property as against the world and even against the actual owner, until his claim is
satisfied, and no one, not even the actual owner, has any right to disturb his posses-
sion without previous payment of claim. [Gordon v. Sullivan, 188 F. 2d. 980, 982
(1951); See also Brown v. Petersen, 25 App. D.C. 359, 363 (1905); 51 Am. Jur. §21.)
Therefore possession is essential and must not be given up freely in order to have an
effective common law lien.
The third principle of the common law lien is its priority to other liens. It may be
said that a lien which arises by force of the common law may be, under certain cir-
cumstances, superior to prior existing contractual or statutory liens on the same prop-
erty. [Drummond Carriage Co. v. Mi/13, 74 N.W. 966, %9 (Neb. 1898).) A lien on
property by operation of common law may have precedence over an existing mort-
gage. [Id.]
The court added:
I put down my decision on the ground that the mortgage, having allowed the mortgagor
to continue in the apparent ownership of the vessel, making it a source of profit by means of
earning wherewithal to pay off the mortgage debt, the relation so created by implication en-
titles the mortgagor to do all that may be necessary to keep her in an efficient state for that
purpose . .. Under these circumstances, the mortgagor did that which wa.r obvio,u/y for
the advantage of all partieJ intereJted. He put her into the hands of the defendant to be
repaired, and according to all ordinary usage, the defendant ought to have a right of lie::i
. .. so that those who arc interested .. . and who will be benefited by the repairs, should
not be allowed to take her out of his hands without paying for them .. . It is to be observed
54 Land Patents