RELINQUISHMENT-FINAL TIMBER CULTURE ENTRY.

HARLAN P. ALLEN.

The relinquishment of a final entry may be accepted without requiring the entry. man to show that he has not transferred the land, where no interest of a transferee is asserted, and the record discloses no fraudulent intent.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 18, 1892.

I have considered the appeal by Harlan P. Allen from your decision of August 18, 1890, holding for cancellation his timber-culture entry No. 2234 (Marshall series), covering the S. of the NE. and the N. of the SE., Sec. 4, T. 118 N., R. 45 W., Minnesota, for conflict with the prior entry by Elwin Jenks for the same land.

It appears that on April 1, 1878, Jenks made timber-culture entry No. 1077 (Benson series), for this land, upon which he made proof and final certificate No. 101 (Benson series) issued January 15, 1887. Jenks's relinquishment, of all his right, title, and interest in and to this land, was filed in the local office on December 2, 1889, and thereupon the local officers canceled his entry and permitted the entry to be made by Allen, now in question.

On January 15, 1890, you refused to accept the relinquishment by Jenks, because not accompanied by a showing that he had not encumbered the land, following the case of Addison W. Hastie, 8 L. D., 618. In that case it appeared that the entryman was seeking to relinquish and secure a cancellation of the entry for the purpose of defeating the collection of a mortgage which had been executed by him upon the land to secure the payment of the sum of $250 and interest, and the department held that under such circumstances it would not allow the entryman to relinquish his entry and thereby secure a cancellation of the same on the ground that it would be an unconscionable wrong, and this same rule was announced in the case of Patrick H. McDonald, 13 L. D., 37. There the entryman attempted to secure a cancellation of his entry for the purpose of depriving his wife and seven children of their home, as well as defeating the rights of the mortgagee and the department held that he should not be permitted to do so under such circumstances, but neither of these cases is applicable to the facts in this. Here, no question is raised that the entryman is attempting by this relinquishment to defraud any party to whom he has conveyed or attempted to convey, an interest in the land. It was free from fraud so far as the record discloses and I can see no reason why the relinquishment, as offered, may not be accepted. In fact, it strikes me as being eminently proper that on account of Allen's entry it should be accepted. Your directing the local officers to reinstate Jenks' entry brings it into direct conflict with that made by Allen and to re-instate it might work serious wrong to him.

Section 1, of the act of May 14, 1880, 21 Stat., 140, seems to recognize the right of this entryman to relinquish his claim to this tract of land if he sees fit so to do and there being no evidence of fraud upon Mr. Jenks' part, and the relinquishment being presumably made in good faith, and Mr. Allen's entry being of record, I can see no objection to allowing the relinquishment and the cancellation of Jenks' entry. It is so ordered. This will leave Mr. Allen's entry to stand subject to future compliance with the timber culture act.

HARRINGTON v. WILSON.

Motion for review of departmental decision rendered July 6, 1891, 13 L. D., 19, denied by Secretary Noble, January 20, 1892.

CONTEST-PROCEEDINGS BY THE GOVERNMENT.

FARGHER ET AL. v. PARKER.

An application to contest an entry filed during the pendency of proceedings by the government confers no right upon the contestant, but may be received and held subject to the final disposition of said proceedings.

Where notice to show cause why an entry should not be canceled for failure to submit proof within the statutory period has been issued, an affidavit of contest subsequently filed will not defeat equitable confirmation of the entry if the showing made is satisfactory.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 20, 1892.

The appeal of T. C. Fargher from your decision of March 26, 1890, sustaining the action of the local officers in rejecting his application to contest the homestead entry of Erastus L. Parker, for N. of NE., SE. of NE., and NE. † of SE., Sec. 18, T. 2, R. 14 E., The Dalles, Oregon, has been considered.

It appears that Parker made said homestead entry November 18, 1881; that on May 28, 1889, the entry having expired by limitation of statute, the local officers so notified the claimant by registered letter, calling on him to show cause why his entry should not be canceled for failure to make final proof within seven years from date of entry.

June 12, 1889, Fargher filed affidavit of contest against said entry, alleging that Parker was dead and that his heirs had abandoned the land in question for the last three years. A hearing in the case was set for August 12, 1889, but neither party appeared for trial and therefore the contest was dismissed.

August 13, 1889, O. M. Bourland entered contest against the same entry, making the same allegations made by Fargher, and on the following day, Fargher filed application to re-open his contest by setting

aside the judgment of default, alleging that he depended on his attorney to give him notice of the day of hearing, but that he never received such notice.

The local officers denied this application on account of the pending application of Bourland, whereupon Fargher appealed and you affirmed the decision below.

Fargher again appeals.

The appellant sets forth by affidavit that since filing his application to contest said entry, he has placed improvements upon said tract by inclosing under a good fence a large portion of the land in controversy with a view of making entry thereof as soon as the land became subject thereto and that Bourland who made the second application to contest knew of his intention to make entry and that he had improvements upon the land.

When the government takes any steps or initiates any proceeding whatever looking to the cancellation of an entry or to enforce the forfeiture of the same no rights can be acquired under an affidavit of contest filed during the pendency of such proceedings against the entry. Drury v. Shetterly (9 L. D., 211); Louis v. Taylor (11 L. D., 193); Dean v. Peterson (id., 102); Canning v. Fail (10 L. D., 657).

An application to contest an entry filed pending proceedings against the same by the government should be received and held subject to the result of said proceedings and if said proceedings fail, the contestant is then entitled to proceed against said entry as of the date when his application was filed. Farrell v. McDonnell (13 L. D., 105).

In the case under consideration the entry of Parker had expired by limitation of statute and the government had initiated the usual proceedings looking towards a cancellation of the entry, hence, under the circumstances, the local officers erred in taking any steps in the application of Fargher to contest the entry in question, but in accordance with the rule laid down in Farrell v. McDonnell (supra) said application should have been received and held pending the result of the government proceeding.

A second contest filed during the pendency of a prior suit, should be received and held in abeyance subject to the final disposition of the prior contest. Conley v. Price (9 L. D., 490); Eddy v. England (6 L. D., 530).

The fact that the party was deceased at the date the government gave out the notice to show cause, does not in my opinion affect the case, so far as the government is concerned. In the case of the decease of a claimant, a contestant desiring to procure the cancellation of the entry, is required to give notice of contest to the heirs of such deceased claimant, but it does not follow that the government stands in the same relation to the claimant as a contestant.

The presumption is, that a claimant, or if deceased, his heirs, were cognizant of the date when the entry expired by limitation, hence the

notice is simply a preliminary step on the part of the government looking toward the cancellation of the entry and should it subsequently appear that the claimant or the claimant and his heirs have complied with the law the entry may be submitted to the board of equitable adjudication.

In view of the foregoing you will direct the local officers to hold said applications, of Fargher and Bourland in abeyance subject to the result of the pending proceedings by the government. Your decision is modified accordingly.

RE-INSTATEMENT-TRANSFEREE-SECTION 7, ACT OF MARCH 3, 1891. MCLEOD v. BRUCE ET AL.

A transferee is entitled to an order of re-instatement where the entry is canceled on contest proceedings instituted in collusion with the entryman, and where said transferee has had no opportunity to show compliance with law on the part of the entryman.

A transferee is bound to know the status of a tract at the date of purchase, and where, at such time, the records of the local office show the cancellation of the entry, he is not entitled to invoke the confirmatory provisions of section 7, act of March 3, 1891.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 21, 1892.

On February 24, 1883, Angus Bruce filed a pre-emption declaratory statement for the NE. SW. 4, S. 1 NW. 1, Sec. 10 and SE. NE. † of Sec. 9, T. 20 N., R. 3 E., Helena, Montana.

On September 29, 1883, he made final proof thereon, and on October 17, 1883, following, paid for the land and received a final receipt therefor. On October 20, 1883, he transferred the tract by warranty deed to Timothy E. Collins, who, on January 2, 1884, transferred the same to Paris Gibson and Robert Vaughn.

On October 26, 1886, Vaughn transferred his interest therein to James J. Hill, and on February 23, 1887, Gibson transferred his interest therein to said Hill. On July 9, 1887, Hill transferred the tract in question to the Great Falls Water-power and Townsite Company.

On April 23, 1884, while the tract was owned by Gibson and Vaughn, your office, in passing on the sufficiency of Bruce's final proof, called upon him to furnish additional proof. He refused to do so unless the owners of the tract would pay him $1,500 for doing so. This they refused to do, and he did not furnish the proof.

On September 7, 1886, the contest affidavit of Roderick McLeod, a cousin of Bruce, was transmitted to your office by the local officers. This affidavit was corroborated by William Bruce, a brother of the entryman and a cousin of McLeod. On October 5, 1886, a hearing was ordered by your office on the charge made by McLeod.

On October 26, 1886, Bruce filed a relinquishment of his entry, whereupon said entry was canceled, and Roderick McLeod was allowed to make homestead entry therefor. On December 29, 1886, the cancellation of Bruce's entry was noted, and the contest case of McLeod v. Bruce was closed.

On March 11, 1887, the transferees filed a motion in your office to re-instate said cash entry made by Bruce on the ground that the contest of McLeod and the relinquishment of Bruce were collusive and in fraud of the vested rights of said transferees.

This application was accompanied by affidavits setting out the facts relied upon to sustain the charges of collusion. On March 26, 1887, this motion was denied by your office, but on appeal to this Department, a hearing was ordered October 18, 1888, "to determine the truth or falsity of the allegations upon which the motion for re-instatement of said cash entry was based." A trial was had on January 14, 1889.

On June 11, 1889, after considering the evidence submitted at said trial, the register and receiver rendered a finding that the relinquishment of Bruce and the making of the entry of McLeod were collusive and intended to defraud the transferees of Bruce. Accordingly, they recommended that Bruce's entry be re-instated and the entry of McLeod canceled.

McLeod appealed from this finding to your office where, on April 17, 1890, the finding of the local officers was reversed in so far as it recommended the re-instatement of Bruce's entry, and it was held that "McLeod having made his homestead entry in the interest of Bruce, the same is accordingly held for cancellation," and appeals were taken from your decision to this Department by both McLeod and the transferees, and were pending here at the date of the passage of the act of March 3, 1891 (26 Stat., 1095).

Since the passage of this act, the Great Falls Water-power and Townsite Company has filed a motion under the rule of April 8, 1891, asking that a patent issue on the entry of Bruce under and by virtue of the provisions of section seven of said act. Said company has furnished affidavits and a certified abstract of title showing

1st. That the land in controversy was sold to and became the property of the Great Falls Water-power and Townsite Company-the present owner-prior to March 1, 1888, and long after final entry.

2nd That no adverse claim originated prior to the date of final entry nor until after the acquisition of the tract by the present owner.

3rd That the purchase was, on the part of the purchasers for a valuable consideration and bona fide in all respects.

4th That no fraud has been found on the part of the purchaser, nor knowledge of fraud on the part of others, and that the land has not been reconveyed to the entry

man.

It is apparent from the facts in this case, showing as they do that the entry was canceled on December 29, 1886, that the motion for confirmation must be denied unless it shall appear from the record as it stood