What’s the difference anyway?
Pop quiz time.
What’s the difference in American law between a patent for land and a deed for land?
This was an issue up for discussion on Facebook yesterday when a poster had a copy of a land patent in favor of an ancestor in Minnesota in 1859. It wasn’t recorded in the deed books until 1877. So, the poster wondered, when exactly did the ancestor own the land?
That’s easy: at the absolute latest, when the patent was issued. The patent itself says that the land was “given and granted … to have and to hold … together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging” — and was dated the 23rd of May 1859.1
And, of course, if you’ve read as many deeds as The Legal Genealogist has, you know that the language in deeds almost always says the land is transferred “to have and to hold … together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging” yadda yadda yadda too.
So… what’s the difference between a patent and a deed?
In other words, who (or what) the land is being transferred by and from.
In a patent, the land is owned by the sovereign: the Crown, the colonial proprietors, the state or the federal government. And the patent itself is “(t)he instrument by which a state or government grants public lands to an individual.”2 The term “patent” is always used in transfers or grants of public lands from the federal government in the United States.3
In a deed, the land is usually owned by some private entity and the deed is “a written agreement, signed, sealed, and delivered, by which one person conveys land… to another.”4
Now of course there are deeds, particularly later in our history, where the grantor is the state or some public entity. But you won’t see a patent where the grantor is a private person or entity.
And that’s the basic, bottom-line difference between the two terms. The document showing the first transfer of land ownership from the sovereign to a private person is generally called a patent; any later transfer from later owners to others is recorded in a deed.
Cite/link to this post: Judy G. Russell, “Of patents and deeds,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 22 Nov 2021).
- See Patrick Colbert (Carver County, Minnesota), certificate no. 2439, 23 May 1859; “Land Patent Search,” digital images, General Land Office Records, Bureau of Land Management, U.S. Department of the Interior (https://glorecords.blm.gov/ : accessed 22 Nov 2021). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 877, “patent.” ↩
- For a primer on the federal land system, see U.S. Bureau of Land Management, Historical Highlights of Public Land Management: Issued on the sesquicentennial of the founding of the first organized system of public land management (Washington, DC: Government Printing Office, 1962); digital images, Internet Archive (https://archive.org/ : accessed 22 Nov 2021). ↩
- Black, A Dictionary of Law, 343, “deed.” ↩