naked power not coupled with interest

[palani]

From 3 Stat 164 - footnote at bottom of page



Any doubt this holds true today?

[chapka]

Don't have a definite answer for you, but I've got plenty of doubt. I'm not 100% sure when 3 Stat. was last current, but Wheaton's was published between 1816 and 1827, and there've been significant changes in the law since then.

Not saying it isn't still true, and it seems like a sensible proposition on principle...just saying an early 19th century footnote doesn't give me much confidence that it is true, especially given how broad a statement it is.

[palani]

chapka

If you find anything please let us know.

Sheriffs' auctions of lands seized for taxes are held on the steps of courthouses because it would be fraud to hold the auction inside.

Title is transfered by quit claim from the sheriff at one of these auctions. The only interest transfered is an equity interest and the buyer is satisfying that when he raises his hand and bids.

I could give you a quit claim on the Brooklyn bridge that would be entirely legal. In this case I am relinquishing any claim I had on the bridge (which is none).

Actual ownership still resides in the original owner. However, posession can be separated from ownership. Case in point the return of lands to the Palestinians on Gaza recently. Under international law (vattel) only public land can be seized in war.

What is interesting about this footnote is congress was practically spelling it out for everyone that the whole business wasn't legal. It would be refreshing if they were as open today.

[chapka]

Originally Posted by palani

Sheriffs' auctions of lands seized for taxes are held on the steps of courthouses because it would be fraud to hold the auction inside.

Sheriff's auctions aren't always held outside courthouses; when they are, though, I'd imagine it's because boat trailers and such won't fit easily in the courthouse. I can't imagine what possible difference it would make in terms of "fraud" if the auction were held inside the courthouse.

What is interesting about this footnote is congress was practically spelling it out for everyone that the whole business wasn't legal. It would be refreshing if they were as open today.

That's not really what the footnote says, though. They're saying it's not legal unless you can prove you complied with the law. In practical terms, although I haven't researched it myself, I'd imagine this includes keeping copies of advertisements where publication is a requirement, etc.--it has nothing to do with what kind of title is transferred. This is about formal requirements and proof of ownership, not substantive ownership.

[palani]

Of course what it says is "NAKED POWER NOT COUPLED WITH AN INTEREST" - if they don't have an interest then they don't have anything to sell --- ergo, FRAUD.

On the other hand, these days if you are paying in FRN's the exchange might be fair, since you are paying for a deed with no coupled interest with currency that has no substance. In a sense you are getting nothing for nothing.

[chapka]

Originally Posted by palani

Of course what it says is "NAKED POWER NOT COUPLED WITH AN INTEREST" - if they don't have an interest then they don't have anything to sell --- ergo, FRAUD.

Incorrect. "Naked power" is a legal term with a specific, long-established meaning. A naked power is a power to sell or dispose of the land not coupled with an interest in the land. The classic example is an executor of an estate who is not also a legatee. The executor may legitimately be given the power to dispose of the land, but holds no interest in it himself or herself. This was perfectly legitimate under common law.

In other words, they don't have an interest of their own to sell, but they do have a legitimate power to sell another person's interest. Thus, in the situation discussed in the image below, the marshall is selling the debtor's interest to satisfy the tax debt. What the quoted passage says is not that this is fraud, but that you can't prove that you own the property just based on the receipt you got from the marshall; you also have to prove that the marshall followed whatever procedures are required to allow the government to sell the land.

Regardless, if it were fraud, it would be fraud whether the sale was inside or outside the building.

[palani]

From Bouviers' 1856 Law Dictionary

NAKED. This word is used in a metaphorical sense to denote that a thing is not complete, and for want of some quality it is either without power, or it possesses a limited power. A naked contract, is one made without consideration, and, for that reason, it is void; a naked authority, is one given without any right in the agent, and wholly for the benefit of the principal. 2 Bouv. Inst. n. 1302. See Nudum Pactum.


NUDUM PACTUM, contracts. A contract made without a consideration,; it is called a nude or naked contract, because it is not clothed with the consideration required by law, in order to give an action. 3 McLean, 330; 2 Denio, 403; 6 Iredell, 480; 1 Strobh. 329; 1 Kelly, 294; 1 Dougl. Mich. R. 188.
2. There are some contracts which, in consequence of their forms, import a consideration, as sealed instruments, and bills of exchange, and promissory notes, which are generally good although no consideration appears.
3. A nudum pactum may be avoided, and is not binding.
4. Whether the agreement be verbal or in writing, it is still a nude pact. This has been decided in England


POWERS - (non-applicable sections not shown)
7. Powers relating to the land are those given to some person having an interest in the land over which they are to be exercised. These again are subdivided into powers appendant and in gross.
8. A power appendant is where a person has an estate in land, with a power of revocation and appointment,
9. A power in gross is where a person has an estate in the land, with a power of appointment, the execution of which falls out of the compass of his estate
10. Powers collateral, are those which are given to mere strangers, who have no interest in the land: powers of sale and exchange given to trustees in a marriage settlement are of this kind.

Quote -
"you can't prove that you own the property just based on the receipt you got from the marshall; you also have to prove that the marshall followed whatever procedures are required to allow the government to sell the land"

I would agree with this assessment with the additional comment that by purchasing land in this manner you are purchasing a color of title and not actual title.

[chapka]

Originally Posted by palani

From Bouviers' 1856 Law Dictionary

NAKED. This word is used in a metaphorical sense to denote that a thing is not complete, and for want of some quality it is either without power, or it possesses a limited power. A naked contract, is one made without consideration, and, for that reason, it is void; a naked authority, is one given without any right in the agent, and wholly for the benefit of the principal. 2 Bouv. Inst. n. 1302. See Nudum Pactum.

Exactly. A naked authority, or naked power, is a power held by a party without an interest.

NUDUM PACTUM, contracts.

This is irrelevant, since a naked contract has nothing to do with a naked power.

POWERS - (non-applicable sections not shown)

[...]

10. Powers collateral, are those which are given to mere strangers, who have no interest in the land: powers of sale and exchange given to trustees in a marriage settlement are of this kind.

Exactly. A collateral power is another name for a naked power.

I would agree with this assessment with the additional comment that by purchasing land in this manner you are purchasing a color of title and not actual title.

This is not what "color of title" means, and you can't purchase a "color of title." The only way "color of title" would be relevant in this scenario would be in the context of adverse possession or a similar proceeding.

There's nothing invalid or incomplete about a naked power; title is transferred just as with any other conveyance of land; there are simply more procedural hoops to be jumped through, as with any fiducairy or related transaction. Nothing that you've quoted above contradicts this. Otherwise, every time you inherited property under someone's will, or bought something from a trustee, you'd be getting less than full title.

[palani]

Chapka

So your opinion is that land purchased at a sheriffs' sale gives the buyer the same rights to the land as the original patent or grant on the same property?

[chapka]

Originally Posted by palani

Chapka

So your opinion is that land purchased at a sheriffs' sale gives the buyer the same rights to the land as the original patent or grant on the same property?

I don't know; I haven't looked into the relevant law. My opinion is simply that the passage quoted in the OP doesn't prevent title from passing; it only affects the process of proving that title passed.