Land Title was historically the most significantly tracked private property known. Up until the 1940’s, when you acquired a parcel of Land in The United States of America, you received the complete set of transfer documents from the Land Patent to the present, with the Land Patent on the bottom and every transfer document between its issuance to your present Deed signed and sealed on the top, wrapped in hide, velum or parchment to secure that such documents would endure. Today people know next to nothing about Land or land rights and trust their Real Estate Agent and Title Company (with its attorneys) did everything right when Escrow closes issuing their Warranty Deed and Title Insurance policy.
We know of one case this year the funds were paid in full at closing and the title company completed all of the documents to the satisfaction of all parties. The title company now needed to file and record the documents and they would be mailed to all parties. The bank that had held a mortgage with the Seller completed their documents and mailed them to the Seller and to the County Clerk and Recorder, but no documents were ever sent to the Buyer. After a couple of months the Buyer tried to contact the Title Company to find that they had gone out of business and the County Clerk and Recorder had no record of the transfer to the Buyer. They had record that the property was free and clear of all liens and encumbrances but it remained on their records as the property of the Seller. About a month later the Title Company was restored back into business, but they had no record of the missing records. Luckily the matter was ultimately resolved and proper records were generated and recorded at the County Clerk and Recorder’s Office, but it could have ended very differently. The problem, these people did not receive their original documents at closing.
100 years ago people would have thought such trust to be pure insanity!
To understand what happened to proper land transfers we must learn a bit about history. Up until the Mayflower landed at Plymouth Rock there were no successful colonies founded in this new land. The fort at Jamestown had been built bet every year everybody the went there died. Being assigned here by the British or the French was rightfully considered a death sentence by the people. The King of Great Britain had to come up with a way of getting people to be willing to come here so he offered what the people called “The King’s Folly”, which were Land Grants made Patent. The people called it that because if a King were to grant Land to a freeman was the same as to recognize the man’s equal sovereign rights to his own private Kingdom! Such a thing would be pure folly for a King and to come to this death sentence to secure such a right of Kings would be folly because you would die for the honor. But, a group of people, now called “Puritans” that fled to Holland to avoid the religious persecution of the King learned of this “folly” and believed it was the only way they could live free and worship God as they chose. So, they moved back to England and for several years negotiated for this “Land Grant made Patent” with the full right of self rule. The problem with their negotiations was that they had little funds and could not pay for their passage to the new land. In the end they got everything they wanted, the Land Patents, self rule and passage but they had to pay for the passage with 50% of their production from their land for seven years.
Initially the King of Great Britain called this whole continent “Virginia”. But once the Puritans landed they flourished and new cities sprang up all over the place. Seven years after the Mayflower landed, in “Hartford, Connecticut”, the people from three principle cities, formed a Constitution to establish a Union they called, “United States of America”. From that time until the present, in The United States of America, Title to Land is passed by Land Patent.
That Union grew in trade expanding to what became the thirteen original States whose people eventually formed “The United States of America” under its Constitution for the United States of America. And since that time, whenever additional Territories came to The United States of America the respective Treaties recognized that the Land belonged to the people, of their own natural right. As those Territories became States in the Union of States of The United States of America, they and the people of that territory had to give up all right and title to the unappropriated land (available non-private land) within that territory to the dispossession of the United States. In other words, the States could not own land unless it was thereafter directly granted to it by the United States Government or unless they privately acquired it by contract from its private land owners. Once the United States had control of such Land Congress passed Acts that showed how the people could lawfully secure their Land by claim and then issued Land Patents to the people as their claims accordingly came in.
Again, to this very day, in The United States of America, Title to Land is passed only by Land Patent, which secures the Land to the named party and to his/her/their heirs and assigns forever. Deeds to land then prove the assignment of the Land Patent passes to new heirs and assigns of the original Land Patent holder. An Abstract of Title (like the MSO) proves the unbroken chain of assignment from Patent to present Deed, but a “Perfect Title” consists of the actual Land Patent and chain of Deeds (or certified copies of the same) from the patent to the present. Therefore, Land Rights in the United States of America are always secured by Land Patent, which Title is proven by its Perfect Title or Certified Abstract of Title to the present.
The federal courts have made it quite clear, “The patent alone passes land from the United States to the grantee and nothing passes a perfect title to public lands but a patent.” Wilcox v. Jackson, 10 L.Ed. 264. The United States Supreme Court has also ruled, “State statutes that give less authoritative ownership of title than the patent can not even be brought into federal court.” Langdon v. Sherwood, 124 U.S. 74, 81 (1887). Which ruling followed a long chain of case law with rulings like this, “I affirm that a patent is unimpeachable at law, except, perhaps, when it appears on its own face to be void; and the authorities on this point are so uniform and unbroken in the courts, federal and state, that little else will be necessary beyond a reference to them. … Once perfect on its face [a patent] is not to be avoided, in a trial at law, by anything save an elder patent. It is not to be affected by evidence or circumstances which might show that the impeaching party might prevail in a court of equity. A patent is evidence, in a court of law, of the regularity of all previous steps to it, and no facts behind it can be investigated. A patent cannot be collaterally avoided at law, even for fraud. A patent, being superior title, must of course, prevail over colors of title; nor is it proper for any state legislation to give such titles, which are only equitable in nature with a recognized legal status in equity courts, precedence over the legal title in a court of law. ” Hooper et. al. v. Scheimer, 64 U.S. 235 (1859)
Today, when people learn about Land Patents and the power secured within them to preserve Land and property rights, they want to get a Land Patent thinking it is something they have to acquire separately from the conventional Deeds. However, in almost every case the Land Patent for the land they want already exists; and was likely issued over a hundred years ago. Back in the late 1940’s people started to see a thing called Title Insurance (more on that later) and regularly thereafter if people did not insist of having a Perfect Title of a Certified Abstract of Title, they got Title Insurance with their Warranty Deed. By 1970, Abstracts and Perfect Titles were becoming rare and today they are at times hard to get if not impossible.
You may remember from the Supreme Court case last cited above, the state legislatures cannot even pass statutes that regulate or control Land transfers or land ownership. But, the property appurtenant to land is definitely a different matter. Such property can be bought sold and traded at will and such transactions can be set in commerce, which can be statutorily controlled. Such transactions are called, “Real Estate Transactions”. Real Estate statutes are completely different from Land Law, which is why Real Estate Agents, Real Estate Attorneys and Title company agents are not typically educated in Land Law. To so educate such Real Estate professionals would be counter productive to the banking industry and mortgage providers and their requirement for Title Insurance protection in all such transactions.
|