What is the diffence between the 1890 Homestead Act Patent and a Land Patent?

[fzxdf5]

I recently acquired an 1890 Homestead Act Land Grant that states that the land is patented and granted to the heirs and assignees forever. This is similar to the wording on the Land Patent found on the BLM's website (www.blm.gov). The questions I have are these:

1: What is the difference between these documents? They seem to provide the same function and offer like wording, but my “legal council” says they both are worthless. If so, then why does MY Title Insurance exempt protection from Land Patent foreclosure/seizure if the documents are truly “Worthless”.

2: What is the significance and the mechanism for the BLM to hold this documentation instead of the original patentee when the Family held the Homestead Act paperwork?

2.b Why are there gaps in the BLM’s database and how does the State (Michigan, in this case) play a roll when they hold Land Patents in their Archives and why were they not surrended to the United States Government when I thought that this was a condition of acceptance as a State of the Union from that of a territory?

3: I have read and understand the mechanism for placing a claim against the original land patent and it seams to have some holes when showing clear title though the use of the Warranty Deed grant and the reliance of the Title Insurance to protect the abstract legitimately. The question is; is the possession of the Homestead Act Patent, honorably obtained from the last surviving heir, sufficient to begin pursuing "Allodial Title" as the lone bearer of this instrument?

3.a If pursuable, then what other transfer instruments are required to persue the patent claim and Allodial Title? (Quitclaim deed…) I have inquired with three different lawyers that deal with land claim disputes and have not been given satisfaction as to their opinion of the law, after not inconsiderable expense, by lack of referral to judgments rendered to support their opinion and rebut mine.

It is my hope that I have a document of more weight than that of Historical Significance and the intrinsic value there of, so I am making an inquiree to those who know.

[Jerseee]

fzxdf5,



Welcome to the forum. Interesting questions you have hopefully this will answer them:





Unlike a land patent, which divests the Government of title, Congress under the Mineral Leasing Act has not only reserved to the United States the fee interest in the leased land, but has also subjected the lease to exacting restrictions and continuing supervision by the Secretary. Thus, assignments and subleases must be approved by the Secretary, 30 U. S. C. § 187; he may direct complete suspension of operations on the land, 30 U. S. C. § 209, or require the lessee to operate under a cooperative or unit plan, 30 U. S. C. (Supp. IV, 1963), § 226 (j); and he may prescribe, as he has, rules and regulations governing in minute detail all facets of the working of the land, 30 U. S. C. § 189; 30 CFR, pt. 221. In short, a mineral lease does not give the lessee anything approaching the full ownership of a fee patentee, nor does it convey an unencumbered estate in the minerals.*fn7 Since the Secretary's connection with the land continues to subsist, he should have the power, in a proper case, to correct his own errors. BOESCHE v. UDALL (05/27/63)



*fn6 R. S. § 441, 5 U. S. C. § 485, charges the Secretary "with the supervision of public business relating to . . . public lands, including mines." He is directed by R. S. § 453, 43 U. S. C. § 2, to "perform all executive duties . . . in anywise respecting . . . public lands [of the United States]," and R. S. § 2478, 43 U. S. C. § 1201, authorizes him "to enforce and carry into execution, by appropriate regulations, every part of the provisions of . . . [the Title dealing with public lands] not otherwise specially provided for."



...land patents once delivered and accepted could be canceled only in judicial proceedings (e. g., Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U.S. 530) BOESCHE v. UDALL (05/27/63)



A patent is the highest evidence of title, and is conclusive as against the Government, and all claiming under junior patents or titles until it is set aside or annulled by some judicial tribunal in a direct proceeding for that purpose. Moore v. Robins, 96 U.S. 533.



With the patent passes away all authority or control of the executive department over the land, and over the title which it has conveyed. Noble v. Union River Logging Ry., 147 U.S. 175; Hardin v. Jordan, 140 U.S. 400.



he sovereign right of taxation belonging to a State is not defeated by the Federal Government patenting land within its territorial jurisdiction to a citizen of the State or of a foreign State. MOORE v. MCGUIRE (03/25/07)



The Government is estopped by its patent and by the leases. Peyton v. Smith, 5 Pet. 483.



It is true the Government sometimes claims immunity from certain species of estoppel, but the rule is well established that this immunity is limited to questions of delay and laches; it does not extend to general considerations of equity. Lowa v. Carr,191 Fed. 257.



This is in accordance with the general rule that possession alone, without title or color of title confers no right beyond the limits of actual possession. See Green v. Liter,8 Cranch, 229, 250; Watkins v. Holman, 16 Pet. 25, 55; Marine Ry. & Coal Co. v. United States, 257 U.S. 47, 65; Humphries v. Huffman, 33 Ohio St. 395, 401; Langdon v. Templeton, 66 Vt. 173, 179; Ryan v. Kilpatrick, 66 Ala. 332, 337.



In the case of lands granted under a Land patent, a “connected documentary chain of evidence” is on public record at the Recorder of Deeds for the county in which the land is located. Even the sovereign States themselves do not have the power to overturn Land patents and their effects upon the land, namely, the severance from the interference in them by the administration of government. Gibson v. Chouteau, 13 Wall. 92, 102 (1871).



In order that this distribution of Public Lands could be carried out expeditiously and according to the desire to prevent the current, or any future, administration of government from invading property rights (as had the King), Congress placed the Land patent of the United States in positions above all other conveyances of property, by exempting lands granted under the Land patent from debt incurred prior to the patenting. Ruddy v. Rossi, 248 U.S. 104, 107 (1918).



The effect of this legislation was to give to the patentee, once the patent was perfected via proper procedure, an ability to hold title that is nearly absolute. Steel v. Smelting Co., 106 U.S. 447, 454 (1882).



The validity of the patent could not be attacked except under fraud or clerical error and either of these circumstances has to be proven in a court of law, and the challenge must be brought within six months of the granting of the patent. In fact, in a court of law, the patent is the conclusive proof of legal title. Id. 452



In an action of ejectment (now called eviction or forcible entry and detainer) the right to the possession of the property must be positively proven by a legal title. Fenn v. Home, 21 How. 481, 483 (1858).



Furthermore, the states may not legislate a superior, or even an equal, instrument to the Land patent. Bagnell et. al. v. Broderick, 13 Pet. 436, 451 (1839).



“No more can private property be so taken away by judicial decision and handed over, gratis, to the State. ‘The touchstone of due process is the protection of the individual against arbitrary action of the government.’” Hughes v. Washington, 389 U.S. 290, 294-298 (1967); California ex rel. State Lands Commission v. United States, No. 89 Original (June 18, 1982); Waterman v. Smith, 13 Cal. 373 (1859); Chipley v. Farris, 45 Cal. 527 (1873); Cassidy v. Carr, 48 Cal. 339 (1874); Los Angeles Farming & Milling Co. v. Thompson, 117 Cal. 594, 49 P. 714 (1897), aff’d sub nom. Thompson v. Los Angeles Farming & Milling Co., 180 U.S. 71 (1901); Leese v. Clark, 18 Cal. 535 (1861);



“It [the patent] passes whatever interest the United States may then have possessed in the premises. It operates in consequence as an absolute bar to all claims under the United States having their origin subsequent to the petition.

[fzxdf5]

Jerseee,



Thanks for the info, you have given me much to digest...

[fzxdf5]

Again I would like to thank you for the wealth of information you have given me...

Except for the question below, you have greatly helped me in my quest to understand the judicial underpinnings of the inquiries I have made.

I do have a question concerning the first entry in your response (Boesche v.Udall). This describes the rights and duties of the parties involved in the Homestead Act as it pertains to the Mineral Lease portion and it goes to great length to this effect. However, a Mineral Lease is defined by quite different mode of operandi as the rights and actual title in the form of denying a patent after a period of supported “improvement” by changing the landscape (aka. Mining), which overtime may have become more valuable in its mined state will be denied. Where the Homestead Act was purported to allow the “farmer” to become part of the Landed Gentry, thus removing the common man from a state of destitution, as was the intent at the time of inception and implementation of the Act. My question still remains as to subsequent order of precedence the documents have when they purport to the same effect by wording of grant to patent by the same office if they both come to perfection. Are they not the same instrument at perfection? And Why?

[Jerseee]

fzxdf5,



An "Act" is not greater than a Treaty. The land is forever free by Treaty. Operate from that and the Constitution. Anything contrary to god-given rights, life, liberty and the pursuit of happiness--is unconstitutional.



I believe the first case has something to do with eminent domain. I am not sure. You can find more case law on this issue by going back a page or two in this particular forum. The title of the thread is Land Patent case law cites.