Posted on 07/04/2005 4:30:29 PM PDT by tryon1ja
Hope I didn’t bore you with all this! (I’m a bit of a nut on this stuff.)
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Not at all! very intersting, thanks for that info. I am very interested in the 'fringe' legal arguments used by Libertarians, some appear to be grounded in reality, others not so much. I plan on looking into this sort of thing further.
fascinating stuff, what kinds of titles were passed in the Great Plains as part of the Homestead Act?
Found this very interesting case: http://www.quatloos.com/taxscams/protcase/britt.htm
George M. BRITT and Anita C. Britt, Plaintiffs-Appellants,
v.
FEDERAL LAND BANK ASSOCIATION OF ST. LOUIS, Yorkville National Bank,
John Doe, Jane Doe and All Unknown Parties, Defendants-Appellees.
No. 2-86-0248.
Appellate Court of Illinois,
Second District.
March 11, 1987.
The judge threw the book at them!
Under common law tradition, all private titles since Norman times have originated from title held by the sovereign. (1 Tiffany, The Law of Real Property s 13 (2d ed. 1920).) The seminal opinion in American jurisprudence analyzing the origin of sovereign titles and setting forth the principles by which conflicting title claims based upon competing sovereignties was authored by Mr. Chief Justice Marshall in Johnson & Graham's Lessee v. M'Intosh (1823), 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681. There, Chief Justice Marshall outlined the means by which sovereigns acquire title (conquest, cession and treaty) and stated that by the Treaty of Paris in 1783: "[T]he powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to the states." Johnson & Graham's Lessee v. M'Intosh (1823), 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681, 691.
This sovereign title, which is absolute and encompasses on the part of the sovereign authority both ownership of the land and the right to govern the inhabitants thereof, is "allodial" title.
(My notes. Notice again, this is an institutional title, not an individual property right.)
This term is used in contradistinction to the term "fee simple title," which contemplates the highest title which may be privately held. (1 Tiffany, The Law of Real Property ss 6 and 13 (2d ed. 1920).) Fee simple title may freely be alienated by conveyance, mortgage or devise but still be subject to some claim of the sovereign. (1 Tiffany, The Law of Real Property ss 6 and 13 (2d ed. 1920).) In current usage, the holder of fee simple title is still subject to dispossession by the government, through due process of law, for nonpayment of real estate taxes and by eminent domain proceedings. The only correct premise supported by authority in the Britts' brief is that land held by the Federal government is not subject to the acts of the States. (Cf., Gibson v. Chouteau (1871), 80 U.S. (13 Wall.) 92, 20 L.Ed. 534; Clackamas County, Oregon v. McKay (D.C.Cir.1955), 226 F.2d 343.) What is totally incorrect is the implicit foundation of the Britts' position: that the land patent issued to "James Evans" and "Francis Evans" in 1841 conveyed the entire title of the Federal government, such that no interest arising by operation of State law can attach to the title.
(My notes, Ernest, Here’s the answer to your question: )
[A land patent is merely the deed by which the government passes fee simple title of government land to private persons. (63A Am.Jur.2d Public Lands s 70 (1984).) Once fee simple title is passed to an individual from the government, whether by land patent or otherwise, claims arising from conveyance or mortgage by that holder will be enforced against him. (Cf., Stark v. Starr (1876), 94 U.S. (4 Otto) 477, 24 L.Ed. 276; United States v. Budd (1891), 144 U.S. 154, 12 S.Ct. 575, 36 L.Ed. 384; see also 63A Am.Jur.2d Public Lands s 92 (1984).) Where, as here, a decree of foreclosure and sale has divested title from the former mortgagor, the mere fact that the mortgagor's claim of title may run directly back through his family to a 19th century patent is of no consequence.
The assertion in the Britts' brief that they hold "fee simple allodial title" is untenable. The Britts have never held sovereign title and now have been divested of their fee simple title by due process of law in the foreclosure action.
(Notice that the court upholds the position that the former owners did not have “sovereign title” they had “fee simple” title.)
The purported "perfected patent" filed by the Britts matches the description of similar documents filed in other States. In Wisconsin v. Glick (7th Cir.1986), 782 F.2d 670, the Seventh Circuit Court of Appeals described these "new land patents" in the following terms: "People saddled with mortgages may treasure the idea of having clean title to their homes. The usual way to obtain clean title is to pay one's debts. Some have decided that it is cheaper to write a 'land patent' purporting to convey unassailable title, and to file that 'patent' in the recording system." 782 F.2d 670, 671-72.
The "new patent" or "perfected patent" theory asserted on appeal, as it relates to the original patents, is also defeated by the estoppel effect of the foreclosure judgment. To the extent that the new theory may be construed as a separate and independent claim, it will be accorded the same treatment by this court that it has been accorded by the district courts of Indiana, Wisconsin and Minnesota and by the United States Court of Appeals for the Seventh Circuit. It is frivolous and without basis and should not be raised in the circuit courts of this State.
Defendant, Federal Land Bank Association of St. Louis, has moved in this court for the imposition of sanctions against plaintiffs and Robert L. Collins, their counsel. The motion, filed August 1, 1986, was ordered taken with the case. No objections to the motion have been filed, and the time for objections has long since passed. 103 Ill.2d R. 361(b)(2).
The gravamen of defendant Bank's motion is: "That Plaintiffs' complaint, as signed by their attorney, alleged allegations which were made without reasonable cause and are frivolous and unwarranted. In substance, the thrust of their complaint to quiet title is purportedly grounded on a [sic] Plaintiffs' 'allodial' fee simple title emanating from 'land patents' from the Plaintiffs for the benefit of the Plaintiffs.
* * * That the Plaintiffs' complaint and attorney Robert L. Collins' conduct in signing, filing and attempting to prosecute it, hinders the judicial process and constitutes a gross waste of judicial resources requiring the court to deal with patently frivolous law suits instead of addressing those suits on its docket which have merit and deserve close scrutiny."
Be careful out there!
A little more on homesteads. One of the provisions of the Homestead Act was:
"SEC. 4. And be it further enacted, That no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor."
When you hear of someone “homesteading” their property, depending on state law, it means their property is protected from claims on unsecured debt. It does not protect property from foreclosure or taxes.
Great summary and highlights. A pleasure to read. lol! you are right the judge certainly threw the book at 'em.
"(Notice that the court upholds the position that the former owners did not have “sovereign title” they had “fee simple” title.)"
What do you think would be the result if people were able to change their 'fee simple' title to a 'sovereign' title?
I am assuming that a 'sovereign title' means no laws of the country apply to you at all. No taxes, no rules, no nuthin'! In fact, if you killed someone on your property no one would have juristiction to prosecute you? Sort of like the old law of the sea - whereby the captain of his vessel was a virtual dictator.
I wonder how the Amish and Indian reservations relate to this 'soveriegn title', or if they fall in another category. If I find anything I'll post it.
Now, if people converted their title from fee simple to "sovereign title" the first battle would be to have others recognize it. After that, it's going to be a continual fight to reduce the scope of your authority because no one wants to be your slave.
Don't know anything about the Amish land titles. Indian reservations are interesting. Sometimes the allodial term is used, but we're also talking about treaties.
Let me know what you come up with.
Bump. Thanks for this post. Bravo!
It is great to see Americans so aware of, & energized in defense of, private property rights by addressing threats, this terrible precedent (Kelo v. New London), and becoming aware of the downside of activist Judges. I have been concerned with both of these related issues for about a decade. I even had brief, separate, conversational encounters with two of the "good" Justices (Scalia & Thomas) in the Kelo case about 6 or 7 years ago re: "The Takings Clause" of the 5th Amendment designed to protect private property from arbitrary seizures, but providing for Eminent Domain for certain "public use" (NOT "public purpose") . It was clear they were anxious to see some good cases walk toward them. I doubt if they would have predicted the bizarre outcome in Kelo, though.
For those of us who are deeply concerned with protection of Private Property from improper application of Eminent Domain in contravention of the Original Intent of the Founders in the 5th Amendment's Takings Clause, I am registering a warning or a concern:
I think AG (& potential USSC Nominee) Alberto Gonzales is very weak on Private Property Rights and lacks an understanding of orignainl intent of the 5th Amendment's Takings Clause (Eminent Domain) based both upon some cases when he ws at the texas Supreme Ct. (e.g., FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000))
and, more recently and significantly, upon his NOT having joined in the Kelo case on the side of property owner. My understanding ws that he had sided with the League of Cities against Kelo while WH Counsel.
As some have frequently observed, he certainly believes in a "Living Constitution" and is NOT a strict constructionist or an Originalist, but rather tends toward the Activist side, per National Review Online and others.
He has been sharply critical of Priscilla Owen in some Texas Supreme Ct. decisions when they were both on that Ct. as Justices, and he has been quoted as being sharply criticial fo Janice Rogers Brown, including being quoted by People for the American Way in their ultra-leftist propaganda.
Thank you!
I agree with both your suggestions re: J. Rogers Brown or Daniel Luttig.
I think there are about a dozen or more good potential choices or so in the U.S. Probably J. Harvie Wilkinson (whom I've met), Ted Olson (ditto), or John Roberts are three excellent alternatives, among others. All would be suppoprted by the Federalist Society, (& probably opposed by all the likely usual suspects)among others.
FReegards, FTS
Thanks for the informative & learned post @63 &Belsewhere!
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