AFFIDAVIT TO BE FILED BEFORE CONTEST. U.S. LAND Office, of 18 PERSONALLY appeared before me who upon his oath says: That he is well acquainted with the tract of land embraced in the homestead entry of No. made —, 18—, and knows the present condition of the same; also that the said has wholly abandoned said tract, and changed his residence therefrom for more than six months since making said entry, and next prior to the date herein; that said tract is not settled upon and cultivated by said party as required by law-and this the said contestant is ready to prove at such time and place as may be named by the Register and Receiver for a hearing in said case; and he therefore asks to be allowed to prove said allegations, and that said homestead entry, No. -, may be declared canceled and forfeited to the United States-he, the said contestant, paying the expenses of such hearing. Sworn to and subscribed this day and year above written before State of entered has not cleared, by (Date.) (Description.) 18-. Homestead Entry No. ; that I am well acquainted with the contested. R. range being duly sworn, deposes and says: That I reside in township of section - -, township as above, and know from personal observation that the said fenced, cultivated, built or resided upon, or in any way improved said tract, since The present condition of said tract is The present residence of the said Also appeared at the same time and place -, who, being duly sworn, depose and say: That they reside in the immediate vicinity of the aforesaid tract, and know the condition of the same; that they are also acquainted with the facts set forth in the aforesaid testimony of personal observation that the statements therein made are true. Where a homestead party has been duly notified and makes default, affidavits showing his abandonment may be taken before any officer authorized to administer oaths, and will be considered in deciding the case(*). Contest for abandonment may be instituted against the entry of a deceased homestead claimant, if the abandonment and change of residence occurred more than six months prior to decease(b). At a hearing to determine abandonment in case of deceased homestead claimants, a certified copy of the will and other matters connected therewith may be introduced(). The heirs or devisees of a deceased homestead claimant cannot be held responsible for the failure of a public officer to administer upon the estate. The statute does not run against the heirs during the time which elapses after the death of the claimant, and the date the administrator takes charge of the estate, providing the heirs are without notice of their rights, and the estate is administered upon within seven years(). An abandoned wife is regarded as the head of a family, and her rights will receive due consideration. When she and her children are still residing upon the homestead entered by her absent husband, the entry cannot be cancelled for abandonment(®). A party, subsequent to entry, contracted to convey the tract to another after receiving patent. Held, that as the contract was verbal and no possession was taken under it, it cannot, under the statute of frauds, be enforced against the claimant; that the facts do not show an alienation of the land; and as an entry cannot be attacked by a stranger in interest except upon (a) Instructions, Land Owner, Vol. 6, p. 153. (b) W. H. Harris, Land Owner, Vol. 3, p. 3. (0) Dorame vs. Towers, Land Owner, Vol. 2, p. 131. (4) Robinson vs. William, Land Owner, Vol. 4, p. 19. (e) Thompson vs. Anderson, Land Owner, Vol. 6, p. 125. charge of abandonment or change of residence, the party should be allowed to perfect his claim (a). Upon proper evidence of a homestead claimant's insanity being presented, his homestead entry will not be contested on ground of abandonment. A guardian in such cases should be appointed by the proper court, who will, on presenting acceptable final proof, receive patent in name of the insane claimant (Þ). Where a homestead claimant whose entry is sought to be canceled for abandonment, is in the penitentiary under sentence of imprisonment for a term of years, notice of contest must be served personally upon the claimant("). Where the evidence in a contest for abandonment shows that the homestead claimant is a poor man, that he was residing upon the land at date of trial, but had been unable to make his residence thereon within six months after entry at the land office, or to improve the land to any great extent, such contest will be dismissed in view of the good faith of the claimant, and when final proof is made it will be submitted to the Board of Equitable Adjudication(). The decision of the Commissioner of the General Land Office, in a contest from which no appeal was taken, becomes final between the parties as to all the matters arising before the trial(). The attacking party has a right to contest an entry in a new proceeding for abandonment or change of residence subsequent to the date of the former trials(ib). No other questions than those of abandonment or change of residence can in any case be considered (ib). A contestant who has been twice defeated should be held to a strict statement of his claim(¿¿). A statement that the homestead party (who is a widow), does not occupy the land claimed as a homestead, but that the same is occupied and used by her son (who is a married man), and who has the sole and undisputed control of the same, is held insufficient to warrant the canceling of her entry (ib). J. RELINQUISHMENT. A party may relinquish his claim, but on his doing so, the land reverts to the government. The party so desiring should surrender to the Register and Receiver of the proper land district the duplicate receipt issued for the entry, with his written relinquishment of the same indorsed thereon. If the duplicate receipt has been lost, he should submit to those officers a written relinquishment of the entry, in which he should state the fact of the loss of the duplicate receipt, and which should be duly signed and acknowledged before the Register or Receiver, or some officer authorized to take acknowledgments. (See act of May 14, 1880, following.) As the law allows but one homestead privilege, a settler relinquishing or abandoning his claim cannot thereafter make a second entry; but where an entry is canceled as invalid for some reason other than abandonment, and not the willful act of the party, he is not thereby debarred from entering again, if in other respects entitled, and may be allowed credit for fees and commissions already paid, on a new homestead entry. The relinquishment of a homestead entry must be the free and voluntary act of the claimant('). Where a patent erroneously issued to a deceased person, has been recorded in the county records, the legal representatives must release all their right and title to the land before the General Land Office can issue another patent in the name of the widow(). A person making a homestead entry cannot be allowed to relinquish it and make another, because he found the land different from what he expected("). (a) Beasore vs. Whitehead, Land Owner, Vol. 2, p. 83. (*) Jones vs. Roberts, Copp's Public Land Laws, p. 251. (4) Weber vs. Gourley, Land Owner, Vol. 3, p. 19. (5) Andrew Johannesen, Land Owner, Vol. 4, p. 108 Should it appear upon a proper showing that swamp land to which a State is entitled h been embraced in a homestead entry, said entry will be canceled, and the party may ma another entry, with the first payments to his credit(¿¿). An administrator or guardian cannot relinquish the homestead entry of a deceased perso without authority from the Probate Court(*). The administrator of the estate of a party who died intestate should not be allowed to reli quish the homestead entry, but a relinquishment to be accepted must be made by each an every one of the heirs(). The following instructions were issued by the General Land Office, relative to decease claimants whose representatives desired to relinquish the unperfected entries: In case of George H. Hudson, reported in Copp's Land Owner, Vol. 2, p. 99, the decease left no widow, nor any children; he died testate, naming William H. Hudson his executor, and one Mary Emily Hudson, an unmarried woman of full age, his sole legatee, and the original duplicate receipt cannot be found. The cancellation desired will be made upon the written relinquishment of the legates (which should describe the land by its proper numbers, and specify date and number of the entry,) accompanied by an affidavit which may be made either by the legatee or the executor. setting forth the loss of the duplicate Receiver's receipt. Proof must accompany the relinquishment establishing the fact that Hudson, the deceased, left no widow or minor children, and that Mary Emily Hudson is the sole legatee, and the identical person named in the will. This may be done by furnishing a duly attested copy of the will under the seal of the proper court, together with the certificate under seal of the judge or clerk having probate jurisdiction, as to the identity of the person of the legatee, and the fact that no widow or minor children survive. If the records of the Probate Court do not evidence the identity of the legatee or the fact of non-survivor, then these facts may be established by the affidavit of the legatee, corrobor ated by the affidavits of any two witnesses who may have cognizance of the facts. In case of Achille Savoie, reported in Copp's Land Owner, Vol. 4, p. 51, the papers sent up show the appointment of Monnier as administrator of the "succession of Achille Savoie, deceased," and the loss of the duplicate homestead receipt. The party to the homestead entry stated in his homestead affidavit that he was "the head of a family." If he left a widow, a relinquishment to be accepted must be executed by her. If the party left no widow, but left an infant child or children, the entry may be relinquished by the administrator, executor or guardian by order of the Probate Court having jurisdiction, in which case it should be clearly shown that no widow was left, and that the relinquishment is made by such order. If he left no widow or infant child, the relinquishment may be made by the party or parties recognized by the local court as the sole and only legal representative or representatives of the deceased, in which case a certificate to that effect by said court should be forwarded with the relinquishment duly executed (). II. Soldiers' and Sailors' Homesteads. a. ORIGINAL ENTRIES. The Revised Statutes of the United States granting homesteads to soldiers and sailors, their widows and orphan children, are the following: SECTION 2304. Every private soldier and officer who has served in the Army of the United States during the recent rebellion, for ninety days, and who was honorably discharged, and has remained loyal to the government, including the troops mustered into the service of the (*) Susan W. Carter, Land Owner, Vol. 2, p. 99. (b) General Land Office Instructions, Land Owner, Vol. 5, p. 165. (6) See Cinthya Gibson, Land Owner, Vol. 3, p. 114, and Susan W. Carter, Land Owner, Vol. 2, p. 99. Jnited States by virtue of the third section of an act approved February thirteen, eighteen undred and sixty-two, and every seaman, marine, and officer who has served in the Navy of he United States, or in the Marine Corps, during the rebellion, for ninety days, and who was honorably discharged, and has remained loyal to the government, shall, on compliance with the provisions of this chapter, as hereinafter modified, be entitled to enter upon and receive patent for a quantity of public lands not exceeding one hundred and sixty acres, or one quarter-section, to be taken in compact form, according to legal subdivisions, including the alternate reserved sections of public land along the line of any railroad or other public work, not otherwise reserved or appropriated, and other lands subject to entry under the Homestead Laws of the United States; but such homestead settler shall be allowed six months after locating his homestead, and filing his declaratory statement, within which to make his entry and commence his settlement and improvement. SECTION 2305. The time which the homestead settler has served in the Army, Navy, or Marine Corps, shall be deducted from the time heretofore required to perfect title; or if discharged on account of wounds received or disability incurred in the line of duty, then the term of enlistment shall be deducted from the time heretofore required to perfect title, withou reference to the length of time he may have served; but no patent shall issue to any homestead settler who has not resided upon, improved, and cultivated his homestead for a period of at least one year after he shall have commenced his improvements. SECTION 2307. In case of the death of any person who would be entitled to a homestead under the provisions of section twenty-three hundred and four, his widow, if unmarried, or in case of her death or marriage, then his minor orphan children, by a guardian duly appointed and officially accredited at the Department of the Interior, shall be entitled to all the benefits enumerated in this chapter, subject to all the provisions as to settlement and improvement therein contained; but if such person died during his term of enlistment, the whole term of his enlistment shall be deducted from the time heretofore required to perfect the title. The advantages this law presents over the general homestead law are: 1. The privilege of filing a declaration with the Register and Receiver, which will hold a tract, selected in person or by an agent, for six months without entry, residence or cultivation. 2. The right of making final proof before the end of the usual five years. Except where the claimant wishes to sell his land, the latter privilege is a disadvantage, because as soon as title passes from the United States to an individual, the real estate becomes subject to taxation. Soldiers and sailors will observe the important requirement of at least one year's actual bona fide residence and cultivation of the homestead, and not be deceived by parties who solicit the business of locating homesteads in their names at considerable expense, when there is no prospect of settling upon the land selected. HOW TO PROCEED. The following proof will be required of parties applying for the benefits of sections 2304, 2305, and 2307, in addition to the prescribed affidavit of the applicant given below. 1. Certified copy of certificate of discharge, showing when the party enlisted and when he was discharged; or the affidavit of two respectable, disinterested witnesses, corroborative of the allegations contained in the prescribed affidavit, on these points, or, if neither can be procured, the party's affidavit to that effect. 2. In case of widows, the prescribed evidence of military service of the husband, as above, with affidavit of widowhood, giving the date of the husband's death, 3. In case of minor orphan children, in addition to the prescribed evidence of military service of the father, proof of death or marriage of the mother. Evidence of death may be the testimony of two witnesses, or certificate of a physician duly attested. Evidence of marlage may be a certified copy of marriage certificate, or of the record of same, or testimony of two witnesses to the marriage ceremony. The Register and Receiver will be allowed to charge one dollar each for receiving and filing the initiatory declaration of the parties in cases where such declarations are filed. One dollar and fifty cents each will be charged by Registers and Receivers in California, etc. shown in a previous table of fees and commissions. On the party producing the proper proof as above, immediate entry of the tract des may be made; but if the party so elect, he may file a declaration, to the effect that he ch a specified tract of land as his homestead, and that he takes it for actual settlement and c... vation. Thereafter, at any time within six months from the date of filing, the party come forward, make his entry of the land, and commence his settlement and improveme Should the party present his declaration through an agent, a duly executed power of attor from the principal must be presented, who will be bound by the selection his agent may m the same as though made by himself. Where the party has failed to make entry within months from the date of filing, he is not thereby debarred from making entry of the th filed for, unless some adverse right has intervened; and if so, he may enter some other t that is still vacant. He cannot file a second declaration. The claims of widows and minor orphan children may be initiated by declaration, : above. Minor orphan children can act only by their duly appointed guardians, who must certified copies of the powers of guardianship. The law does not require, as a condition enjoying its benefits, that the party should first file a declaratory statement, and, as be stated, immediate entry may be made. The forms used in these entries are as follows: No. DECLARATION. LAND OFFICE AT 18 I, do hereby declare and give notice that I claim for a homestead, under section 2304 of Revised Statutes of the United States, granting homesteads to honorably discharged soldiers and sailors, the widows and orphans, the — of section, of township, of range —, containing acres; and further declare that I take the said tract of land for actual settlement and cultivation, and for my own use a benefit. his Attorney in fact. Per APPLICATION. LAND OFFICE AT 18 I, of section, on the - day of I, hereby apply to enter, under section 2304 of the Revised Statutes of the United States. -, through day of Register of the land office at above application at this office on the and commissions prescribed by law. my declarato AFFIDAVIT. No. I, of -, do solemnly swear that I am a of the age of twenty-one years, and citizen of the United States; that I served for ninety days in company, regiment, United States v unteers; that I was mustered into the United States military service the- day of honorably discharged therefrom on the - day of ; that I have since borne true allegiance to the Government; and that I have made my application No. -, to enter a tract of land under section 2304 of th Revised Statutes of the United States, giving homesteads to honorably discharged soldiers and sailors, the widows and orphan children; that I have made said application in good faith; and that I take said homestead for the purpose of actual settlement and cultivation, and for my own exclusive use and benefit, and for the us and benefit of no other person or persons whomsoever: and that I have not heretofore acquired a title to a tra of land under the homestead laws, or voluntarily relinquished or abandoned an entry heretofore made unde said laws: So help me God. The filing of a soldier's declaratory statement is not necessarily an abandonment of a pre emption claim(). Soldiers' homestead declarations must be rejected when received by mail(). (*) Eugene Mitchell, Land Owner, Vol. 3, p. 164. (b) Instructions, Land Owner, Vol. 1, p. 20 |