15.28 Patents


U.S. Patents

A "Government Patent" is an instrument by which the United States conveys title to public land. The patent is a conveyance and the issuance thereof is a prerequisite to the passage of the fee from the United States. Wherever the granting act specifically provides for the issuance of a patent, then the rule is that the legal title remains in the government until the patent is issued.

A patent for public land is issued and signed by the Secretary of the Interior in the name of the United States, but this duty may be delegated to officers and employees of the Department of the Interior, notice of such delegation being given by publication in the Federal Register.

A government patent is the highest evidence of title. It passes all control and title of the executive department of the government over the title. A patent which is regular in form and for whose issuance there is statutory authority is so binding upon the government that a purchaser from the patentee does not need to make any investigation as to the details of its issuance. The legal title has passed and the patent is conclusive against the government. The General Land Offices loses its jurisdiction over the land as soon as a valid patent is issued, and any decision as to conflicting titles or grants is thereafter a matter for the courts to decide.

Unless a patent is void on its face, it is not subject to collateral attack. Mistakes will be corrected by the court when clearly proven, or the government may secure a decree for cancellation of a patent issued pursuant to fraud or mistake. The right of the government to question patents issued prior to 1891 has been barred by statute, and any suits to cancel later patents are now required to be brought within six years after the issuance of the patent.

To be valid, patents from the government, the same as conveyances from other grantors, must contain the name of the grantee, and a description from which the land can be located and identified from other land. Patents must further: (1) be issued in the name of the United States; (2) bear the seal of the General Land Office; (3) be signed by the President, or in his name by the Secretary of the Interior; or by an officer or employee of the Department of Interior, if proper notice has been given in the Federal Register; (4) be countersigned by the Recorder of the General Land Office; and (5) be recorded in the proper books of that office. Patents become effective without delivery from the time that they are recorded in the General Land Office, and relate back to the date at which the patentee was entitled to a conveyance from the government.

For copies of lost or unrecorded United States patents, or for information not obtainable at the local office, anyone can write to the Director of the Bureau of Land Management, Dept. of Interior, at Washington D.C.


State And Territories Patents

The principles in relation to the disposition of lands by the federal government are inmost cases applicable to a similar disposition of lands by a state or territory. The legal title to land sold by the state does not pass until a patent is executed in the manner prescribed by statute; and, in the meantime, the purchaser's receipt or certificate is evidence of an equitable title with a right to a patent. Such receipts and certificates are assignable, and transfers, either by deed or assignment, operate as conveyances of the owner's title. In the absence of notice from the pendency of an action attacking the patent, a purchaser depending upon a state patent does not need to look behind it; and all the incipient steps authorizing the officers to issue the patent are presumed to have been regularly taken. But, though a patent from the state passes whatever title the latter has, it raises no presumption that the state ever owned the land covered by the patent.


Recording The Patents

It is permissible and customary that government patents, or certified copies thereof be recorded in the county where the land is located.

In most states, the laws not only permit recording, as in the case of federal patents, but require that state patents, certificates of sale, and assignments of the latter be recorded the same as deeds.


Patent Reservation

Patents from the United States, a particular state, or from a foreign sovereign antedating the admission in the Union of the state in which the land is located, frequently contain reservations or exceptions of some right or interest. Probably the most common reservations are of minerals, mining rights, water and water rights. You must review state law regarding the issuance of patents to determine if any statutory reservations exist.

If that is the case, any title policy to be issued must set forth an exception (unless printed as part of Schedule B of the general exceptions) to the interest or right reserved and the extent thereof and refer specifically to the instrument containing said reservation.