attacks. Fisher v. Rule, 248 U.S. 314, 318 (1919); see also Hoofnagle v. Anderson, 20 U.S. (7 Wheat.) 212 (1822).
A patent issued by the United States of America so vests the title in the lands covered thereby, that it is the further general rule that, such patents are not open to collateral attack. Thomas
v. Union Pacific Railroad Company, 139 F.Supp. 588, 596 (1956). See also State v. Crawford, 475 P.2d 515 (Ariz. App. 1970) (A patent is prima facie valid, and if its validity can be attacked at all, the burden of proof is upon the defendant); State v. Crawford, 441 P.2d 586, 590 (Ariz. App. 1968) (A patent to land is the highest evidence of title and may not be collaterally attacked); Dredge v. Husite Company, 369 P.2d 676,682 (1962) (A patent is the act of legally instituted tribunal, done within its jurisdiction, and passes the title. Such a patent is a final judgment as well as a conveyance and is conclusive upon a collateral attack). Absent some facial invalidity, the patents are presumed valid. Murray v. State, 596 P.2d 805, 816 (1979). The government retains no power to nullify a patent except through a direct court proceeding. United States v. Reimann, 504 F.2d 135 (1974); See also Green v. Barker, 66 N.W. 1032, 1034 (1896) (The doctrine announced was that the deed upon its face, purported to have been issued in pursuance of the law, and was therefore only assailable in a direct proceeding by aggrieved parties to set it aside). Through these cases, it can be shown that the patent which passes the title from the United States to the sovereigns, and was
created to keep the speculators from the land, is only assailable in a direct proceeding for fraud or mistake. In no other situation is it allowable for the courts, to simply eliminate the patent. One question that may arise is what do the courts mean by a collateral attack and what can be done by courts of equity if a collateral attack is presented?
Perhaps the easiest means of defining a collateral attack is to show the converse corollary, or a direct attack on a patent as was stated in the previous paragraphs, a direct attack upon a land patent is an action for fraud or mistake brought by the government or a party acting in its place. Therefore, a collateral attack, by definition, is any attack upon a patent that is not covered within the direct attack list. Perhaps the most prevalent collateral attack in property law today is a mortgage or deed of trust foreclosure on a color of title. In these instances, it is determined that the complete title and interest in the land is purchased by the mortgagee or another in his place. Such a determination displaces the patentee’s ownership of the title without the court ever ruling that the patent was acquired through fraud or mistake. This is against public policy, legislative intent, and the overwhelming majority of case law. Therefore, it is now necessary to determine the patent’s role in American property law today, to see what powers the courts of equity have in protecting the rights of the challengers of patents.
The attitude of the Courts is to promote simplicity and certainty in title transactions, thereby they follow what is in the chain of title and not what is outside. Sabo v. Horvath, 559 P.2d 1038, 1044 (1976). However, in equity courts, title under a patent from the government is subject to control, to protect the rights of parties acting in a fiduciary capacity. Sanford v. Sanford, 139 U.S. 290 (1891). This protection however does not include the invalidation of the patent. The determination of the land department in matters cognizable by it, in the alienation of lands and the validity of patents, cannot be collaterally attacked or impeached. Id. Therefore the courts have had to devise another means to control the patentee, if not the patent itself, as stated in Raestle v. Whitson, 582 P.2d 170, 172 (1978), “The land patent is the highest evidence of title and is immune from collateral attack. This does not preclude a court from imposing a constructive trust upon the patentee for the benefit of the owners of an! “equitable interest”. This then explains the most equitable way a court may effectively restrict the sometimes harsh justice handed down by a strict court of law. Equity courts will impose a trust upon the patentee until the debt has been paid. As has been stated, a patent can not be collaterally attacked, therefore the land can not be sold or taken by the courts unless there is strong evidence of fraud or mistake. However, the courts can require the patentee to pay a certain amount at regular intervals until the debt is paid, unless of course, there is a problem with the validity of the debt itself. This is the main purpose of the
patent in this growing epidemic of farm foreclosures that defy the public policy of Congress, the legislative intent of the Statutes at large, and the legal authority as to the type of land ownership possessed in America. Why then is the rate of foreclosures on the rise?
Titles to land today, as was stated earlier in this memorandum, are normally in the form of colors of title. This is because of the trend in recent property law to maintain the status quo. The rule in most jurisdictions, and those which have adopted a grantor-grantee index in particular, is that a deed outside’ the chain of title does not act as a valid conveyance and does not serve notice of a defect of title on a subsequent purchaser. These deeds outside the chain of title are known as “wild deeds.” Sabo
v Horvath, 559 P.2d 1038, 1043 (1976); See also Porter v Buck, 335 So.2d 369, 371 (1976); The Exchange National Bank v Lawndale National Bank, 41 ILL.2d 316, 243 N.E.2d 193, 195—96 (1968) (The chain of title for purposes of the marketable title act, may not be founded on a wild deed. These stray, accidental, or interloping conveyances are contrary to the intent of the marketable title act, which is to simplify and facilitate land title transactions); and Manson v. Berkman, 356 ILL. 20, 190 N.E. 77, 79 (1934). This liberal construction of what constitutes a valid conveyance has led to a thinning of the title to a point where the absolute and paramount title is almost impossible to guarantee. This thinning can be directly attributed to the constant use of the colors of
title. Under the guise of being the fee simple absolute, these titles have operated freely, but in reality, they evidence something much different.
It was said in Common-Law England, that when a title was not completely alienable and not the complete title, it was not a fee simple absolute. Rather it was some type of contingent conveyance that depended on the performance of certain tasks before the title was considered to be absolute. In fact, normally the title never did develop into a fee simple absolute. These types of conveyance were evidenced in part by the operable word, sin, the conveyance and in part by manner in which the granter could reclaim the property. If the title automatically reverted to the grantor upon the happening of a contingent action, then the title was by a fee simple determinable. Scheller v. Trustees of Schools of Township, 41 North, 67 ILL. App.3d 857, 863 (1978). This is evidenced most closely today by deeds of trust in some states. If it required a, court’s ruling to reacquire the land and title, then the transaction and title were held by a fee simple with a condition subsequent. Mahrenholz v. Country Board of Trustees of Lawrence County, 93 III. App.3d 366, 370—74 (1981). This is most closely evidenced by a mortgage, in a lien or intermediate-theory state. These analogies may be somewhat startling and new to some, but the analogies are accurate. When a mortgage is acquired on property, the mortgagee steps into the position of a grantor with the authority to create the contingent estate as required by the
particular facts. This is exactly what the grantor in Common—Law property law could acquire. All the grantor had to do was choose a particular type of contingency and use the necessary catch-words, and almost invariably the land would one day be refused due to a violation of the contingency. In today’s property law, the color of title has little power to protect the landowner. When the sovereign is unable to pay the necessary principal and interest on the debt load, then the catch-words and phrases found in the deed of trust or mortgage become operational. Upon the occurrence of that event, the mortgagee or speculator, having through a legal myth acquired the position of a grantor, is in a position to either automatically receive the property simply by advertising and selling it, or can acquire the position of the grantor and eventually the possession of the property by a court proceeding.
In Common-Law, the grantor of a fee simple determinable where the contingency was broken or violated, could automatically take the land from the grantee holder, by force if necessary. If however, the grant was a fee simple upon condition subsequent the grantor, when the contingency broken, had to bring a legal proceeding to declare the contingence broken, to declare the grantee in violation, and to order the grantee to vacate the premises. These situations, though under different names and proceedings, occur every day in America. Is there really any serious debate therefore, that the colors! of title used today, with the creation of a lien upon the property, become fee simple
determinable and fee simples upon condition subsequent? Is this a legitimate method of ensuring a stable and permanent system of land ownership? If the color of title is weak, then how strong is a mortgage or deed of trust placed on the property?
Fee simple estates may be either legal or equitable. In each situation it is the largest estate in the land that the law will recognize. Hughes v. Miller’s Mutual Fire Insurance Co., 246 S.W. 23 (1922). If a mortgagee, upon the creation of a mortgage or deed of trust, steps into the shoes of the grantor upon a conditional fee simple, does it then mean the mortgagee has acquired one o~ the two halves of a fee simple, when cases have shown the fee simple is only evidenced by a patent? Actually, courts have held in many states that a mortgage is only a lien. United States v. Certain Interests in Property in Champaign County, State of Illinois, 165 F.Supp.474, 480 (1958) (In Illinois and other lien theory states, the mortgagee has only a lien and not a vested interest in the leasehold); See also Federal Farm Mortgage Corp. v. Ganswer, 146 Neb. 635, 20 N.W. 2d 689 (1945) (Even after a condition is broken or there is a default on a mortgage, a mortgagee only has an equitable lien which can be enforced in proper proceedings); South Omaha Bank v. Levy, 95 N.W.603 (1902) Strict foreclosure will not lie when mortgagor holds the legal title); First National Bank v. Sergeant, 65 Neb. 394, 91 N.W. 595 (1902) (Mortgagee cannot demand more than is legally due); Morrill. v. Skinner, 57 Neb. 164, 77 N.W. 375 (1898) (Mortgage conveys no estate but merely creates a lien);
Barber v. Crowell, 55 Neb. 571, 75 N.W. 1109 (1898) (Mortgage is mere security in form of conditional conveyance), Sneer v. Hadduck, 31 Freeman (Ill.) 439, 443 (1863) (Assignments or conveyances of mortgages do not convey the fee simple, rather they hold only security interests). These cases amply illustrate that a mortgage or deed of trust is only a lien, in lien and intermediate-theory states. Even in title theory of mortgages states, courts of equity have determined that the fee simple title is not really conveyed, either in its equitable or legal state. See supra Barber, at 1110. A fee simple estate still exists even though the property is mortgaged or encumbered. Hughes v. Miller’s Mutual Fire Insurance ~ 246 S.W. 23, 24 (1922). In fact, a creditor asserting a lien (mortgage) must introduce evidence or proof that will clearly demonstrate the basis of his lien. United States v. United States Chain Company, 212 F.Supp. 171 (N.D. M. 1962). If a mortgagee, even in the title theory states, has only a lien, yet when the mortgage or deed of trust is created he has a f cc simple determinable or condition subsequent, then obviously the color of title used as the operative title has little force or power to protect the sovereign freeholder. Nor can it be said that such a color of title is useful in the maintenance of stable and permanent titles. The patent, in almost all cases, has been originally issued to the first purchaser from the government. Theoretically then the public policy, Congressional intent from the 1800’s, and the Congressional intent of the last few decades should protect the sovereign in the enjoyment and possession of his freehold. This
however is not the case. Instead, vast mortgaging of the land has occurred. The agriculture debt alone has risen to over $220,000,000,000 in the past three decades. This is in part due to the vast expansion of mortgaged holdings and in part due to the rural sector’s inability to repay existing loans requiring the increased mortgaging of the land. This is in exact contradiction to the public policy and legislative intent of maintaining stable and simplistic land records, yet marketable titles (colors of
title) were supposed to guarantee such records. Wichelman v. Messner, 83 N.W.2d 800, 805 (1957). Colors of title are ineffective against mortgages and promote the instability ,and complexity of the records of land titles by requiring abstracts and title insurance simply to guarantee a marketable title. Worse, a practice has prevailed in some of the states .... of permitting actions to determine titles to be maintained upon warrants for land (warranty deeds) and other titles not complete or legal in their character. This practice is against the intent of the Constitution and the Acts of Congress. Bagnell v. Broderick, 38 U.S. 438 (1839). Such lesser titles have no value in actions brought in federal courts not withstanding a State legislature which may have provided otherwise. Hooper et. al. v. Scheimer, 64 U.S. (23 How.) 235 (1859). It is in fact possible that the state legislatures have even violated the Supremacy Clause of the United States Constitution. These actions are against the intent of the founding fathers and against the legislative intent of the Congressman who enacted the statutes at large creating the land patent or land
grant. This patent or grant, since the land grant has been stated to be another name for the patent, the terms be4,ng synonymous, Northern Pacific Railroad Co. v. Barden, 46 F. 592, 617 (1891); prevented every problem that was created by the advent of colors of title, marketable titles, and mortgages. Therefore it is necessary to determine the validity of returning to the patent as the operative title.
Patents are issued (and theoretically passed) between sovereigns ... and deeds are executed by persons and private corporations without these sovereign powers. Leading Fighter v. County of Gregory, 230 N.W.2d 114, 116 (1975). As was stated earlier, the American people in creating the Constitution and the government formed under it, made such a document and government as sovereigns, retaining that status even after the creation of the government. Chisholm v. Georgia, 2 Dall. (U.S.) 419 (1793). The government as sovereign passes the title to the American people creating in them sovereign freeholders. Therefore, it follows that the American people, as sovereigns, would also have this authority to transfer the fee simple title, through the patent, to others. Cases have been somewhat scarce in this area, but there is some case law to reinforce this idea. In Wilcox v. Calloway, I Wash. (Va.) 38, 38-41 (1823), the Virginia Court of Appeals heard a case where the patent was brought up or reissued to the parties four separate times. Some patents were issued before the creation of the Constitutional United States government, and some occurred
during the creation of that government. The courts determined the validity of those patents, recognizing each actual acquisition as being valid, but reconciling the differences by finding the first patent, properly secured with all the necessary requisite acts fulfilled, carried the title. The other patents and the necessary requisition of a new patent each time yielded the phrase “lapsed patent.” A lapsed patent being one that must be required to perfect the title. Id. Subsequent patentees take subject to any reservations in the original patent. State v. Crawford, 441 P.2d 586, 590 (1968). A patent regularly issued by the government is the best and only evidence of a perfect title. The actual patent should be secured to place at rest any question as to validity of entries (possession under a claim and color of title). Young v. Miller, 125 So.2d 257, 258 (1960). Under the color of title act, the Secretary of Interior may be required to issue a patent if certain conditions have been met, and the freeholder and his predecessors in title are in peaceful, adverse possession under claim and color of title for more than a specified period. Beaver v. United States, 350 F.2d 4, cert. denied, 387 U.S. 937 (1965). A description which will identify the lands (and possession) is all that is necessary for the validity of the patent Lossing v. Shull., 173 S.W.2d 1, 1 Mo. 342 (1943). A patent to two or more persons creates presumptively a tenancy in common in the patentees. Stoll v. Gottbreht, 176 NW. 932, 45 N.D. 158 (1920). A patent to be the original grantee or his legal representatives embrace the representatives by contract as well as by law. Reichert v. Jerome
H. Sheip, Inc., 131 So. 229, 222 Ala. 133 (1930). A patent has a double operation. In the first place, it is documentary evidence having the dignity of a record of the evidence of the title or such equities respecting the claim as to justify its recognition and later confirmation. In the second place, it is a deed of the United States, or a title deed. As a deed, its operation is that of a quitclaim or rather of a conveyance of such interest as the United States possess in the land, such interest in the land passing to the people or sovereign freeholders. 63 Am. Jur. 2d Section 97, P. 566. Finally, the United States Supreme Court, in Summa Corporation v. California ex rel. State Lands Commission, etc., 80 L.Ed.2d 237 (1984), made determinations as to the validity of a patent confirmed by the United States through the Treaty of Guadalupe Hidalgo, 9 Stat. 631 (1851). The State of California attempted to acquire land that belonged to the corporation. The State maintained that there was a public trust easement granting to the State authority to take the land without compensation for public use. The corporation relied in part on the intent of the treaty, in part on the intent of the patent and the statute creating it, and in part in the requisite challenge date of the patent expiring. The Summa Court followed the lengthy dissertation of the dissenting judge on the California Supreme Court, See 31 Cal.3d 288, dissenting opinion, in determining that the patent which had been the apparent operative title throughout the years, was paramount and the actions by the State were against the manifest weight of the Treaty and the legislative intent of the
patent statutes. Id. at 244-46. In each of these cases it is stated that the patent, through possession, or claim and color of title, or through the term “his heirs and assigns forever”, or through the necessary passage of title at the death of a joint tenant or tenant in common, is still the operable title and is required to secure the peaceful control of the land. These same ideas can also apply to state patents for lands that went to the state or remained in the hands of the state upon admission into the Union. Oliphant v. Frazho, 146 N.W.2d 685, 686-87 (1966); Fiedler v. Pipers, 107 So.2d 409, 411-12 (1958) (Not even the State could be heard to question the validity of a patent signed by 1the Governor and the Register of the State Land Office). No government can object to the intent and creation of a patent after such is issued, unless issued through fraud or mistake. The patent, either federal or state, has an intent to create sovereign freeholders in the land protected from the speculators, (any lending institution speculates upon land), and a public policy to maintain a simplistic, stable and permanent system of land records. Land patents were designed to effectively insure that this intent and policy were retained. Colors of title can not provide this type of stability, since such titles are powerless against liens, mortgages, when the freeholder is unable to repay principle and interest on the accompanying promissory note. Equity will entertain jurisdiction at the instance of the owner of f cc of lands to remove a cloud upon his title created by the sale of the premises and a deed issued thereto under a decree of foreclosure of
a mortgage thereon. Hodgen v. Guttery, 58 Free. (ILL.) 431, 438 (1871) (though this case dealt with an improper sale of land covered by a patent, any forced sales of lands covered by a patent is improper in view of the policy and intent of Congress). Equity however will protect the mortgagee who stands to lose his interest in the property, thereby requiring a trust to be created until the debt is erased, making partners of the creditor and debtor. What then exists is a situation where the patent should be declared (confirmed or reissued), to protect the sovereign freeholder and to re-institute the policy and intent of Congress. The patent as the paramount title, fee simple absolute, can not be collaterally attacked, but when a debt can not be paid, immediately placing the creditor in jeopardy, the courts will impose a constructive trust until the new "partners" can mutually eliminate the debt. If the debt can not be satisfactorily removed, it is still possible, considering the present intent of the government, to maintain sovereign freeholders on the property immune from the loss of the land, since it is Congress’ intent to keep the family farm in place. No use of colors of title to act as the operative title is inappropriate considering the rising number of foreclosures and the inability of the colors of title to restrain a mortgage or lien. However, the lending institutions, speculators on the land, maintain that the public policy of the country includes the eradication of the sovereign freeholders in the rural sector in an effort to implant upon the country, large corporate holdings. This last area must be effectively met and eliminated.
To those who framed the Constitution, the rights of the States and the rights of the people were two distinct and different things. Throughout their debates they had two objects foremost in their minds. First, to create a strong and effective national government, and secondly to protect the people and their rights from usurpation and tyranny by government. The people’s liberties and individual rights and safeguards were to be kept forever beyond the control and dominion of the legislatures of the States, whom they distrusted, and against whom they so carefully guarded themselves. If such control and domination and unlimited powers were given to a few legislatures they could override every one of the reserved rights covered by the first ten Amendments (the Bill of Rights); they could change the government of limited powers to one of unlimited powers; they could declare themselves hereditary rulers; they could abolish religious freedoms; they could abolish free speech and the right of the people to petition for redress; they could not only abolish trial by jury, but even the rights to a day in court; and most importantly they could abolish free sovereign ownership of the land. The whole literature of the period of the adoption of the Constitution and the first ten amendments is one great testimony to the insistence that the Constitution must be so wended as to safeguard unquestionably the rights and freedoms of the people so as to secure from any future interference by the new government, matters the people had not already given into its control, unless by their own consent United States v. Sprague, 282 U.S. 716, 723—726 (1930). The problem is
not in the lending institutions that simply practice good business on their part. The problem is the loss of freedoms and the present interference with allodial sovereign ownership lies with the state legislatures that created law, or marketable title acts, that claimed to enact new simplistic, stable land titles and actually created a watered-down version of the fee simple absolute that requires complicated tracing and protection, and is ineffective against mortgage foreclosures. None of these problems would occur if the patent were the operable title again, as long as the sovereigns recognized the powers and disabilities of their fee simple title. The patent was meant to keep the sovereign freeholder on the land, but the land was also to be kept free of debt, since that debt was recognized in 1820 as un-repayable, and today is un-repayable. The re-declaration of the patent is essential in the protection of the rural sector of sovereign freeholders, but also essential is the need to impress the state legislatures that have strayed from their enumerated powers with the knowledge that they have enacted laws that have defeated the intent and goal of man since the middle ages. That intent, of course, is to own a small tract of land absolutely, whether by landboc or patent, on which the freeholder is beholden to no lord or superior. The patent makes sovereign freeholders of each person who own his/her land. A return to the patent must occur if those sovereign freeholders wish to protect that land from the encroachment of the state legislatures and the speculators that benefit from such legislation.