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they should especially protect its interests mitting the same before the expiration of Should he make such filing, which he is when there is no adverse claimant to elicit the sixty days allowed the parties within required to do within thirty days from the facts. Practice Rules 37 and 38 re- which to appeal from my said decision in notice hereof, the entry of Hawkins will quire them in trials, so far as they can, to the previous case. But afterwards, namely stand subject to his rights thereunder. ascertain the exact condition and status on August 22d, you appear to have recti- Or, if desired by Hawkins, his entry will of the land, and all the facts touching the fied your error by re-instating said entry. be cancelled and he allowed to make a new rights of the parties, and the nature, ex- No appeal having been filed in the former one, with credit for fee and commissions tent and value of alleged improvements, case, that case was closed by this Office already paid. and by whom made and when, and the October 18, 1882.

Affirmed by Secretary Teller, January date of settlement. When there is no On October 17, 1882, the case at bar 30, 1884. trial, and the proofs are wholly ex parte, was initiated by Massingill, and his cause this duty requires from them double watch of action seems to be grounded on the

Dumas vs. Cook. fulness, and that they report to you what- same claim as was his interplea in the Attorney-Date.—The filling in of a date in a ever-whether within their personal know- former contest, namely--that he is entitled blank form by an attorney, as described, is ledge or otherwise-tends to show any to the preference right of filing upon the

immaterial, and does not affect the validity of fraudulent proceeding in the case, or any land because of his prior settlement and

the affidavit. non-compliance with the requirements of improvements thereon.

SECRETARY TELLER to Commissioner Mc Farthe law. A pre-emptor is not forbidden But you hold that as this question was

land, January 28, 1884. from carrying on business elsewhere than decided by my decision of July 24, 1882,

I have considered the appeal of Peter on the land, provided his actual residence in the former case alluded to, it is res ju

Dumas from your decision of April 27, is thereon, but the report in question tends dicata, and therefore cannot be further in- 1883, dismissing his contest against Timto show that Buchman's residence was, in quired into or discussed. Upon this view ber Culture Entry Number 2421 of Charles fact, in Tucson and not on the land, and your decision is based.

W. Cook, (for the S. E. of the N. E. , hence its manifest propriety, although it I do not, however, concur in your con

the E. £ of the S. E. 4, and the So W. of did not so appear in the proofs.

clusions. My decision, adverse to Massin- the S. E. of Section 22 Township 9 s., Ordinarily, under such circumstances, gill, in the former case, was based on the Range 6 W., Concordia, Kansas), on the the case might be returned for additional ground that he gained nothing by virtue ground that the affidavit of contest, as testimony; but your decision, while reject. of the improvements made by him on the sworn to by Dumas, failed to specify the ing his present proofs, reaches this end land while it was embraced in an uncan- date of said timber-culture entry, and that by allowing Buchman to file further proof celled entry.

the omission was supplied by his attorney of his full compliance with the law at any It bad reference solely to his standing at the time of filing it. time within thirty-three months from the at the time his claim for consideration was

In all other respects the affidavit of condate of his settlement.

presented. Matters subsequent thereto test, and the accompanying application to I affirm your decision.

were dehors the record, and could not be, enter, are regular. The omission of the

as they were not, inquired into or brought date of entry, namely August 19, 1881, MASSINGILL VS. HAWKINS. in issue.

occurred by a failure to fill up a blank in a Previous Contest- Improvements.-An adverse If Massingill can therefore establish that printed form, but said date appeared cordecision based on the standing of a party or he has rights that have since accrued, there rectly below, in that part of the affidavit interpleader in a previous contest should, as a is every reason why he should be allowed alleging a failure to break said land be

tween the 19th day of August, 1881, and subsequent to such decisions. Rights since to do so. accrued should be adjudicated without refer- It is his right, and Hawkins' special the 19th day of August, 1882.” Since the ence to the prior decisions.

plea in bar of res judicata cannot inter- allegation of non-compliance fixed the dates COMMISSIONER MCFARLAND to Reg: and Rec., pose to estop him from exercising it; for of the beginning and ending of a year, and Dardanelle, Ark., July 28, 1883. (R. F. F.)

that plea, to my mind, is untenable under since it was within the official knowledge I have considered the case of Newton the state of facts as now presented.

of the local officers that the first-named Massingill vs. William Hawkins, involving With this view of the matter I have ex- date corresponded with the date of entry, the latter's Additional Homestead Entry amined the record of contest. I find there it is my judgement that the said omission No. 16,325, made under the Act of March from that Massingill was in possession of, was not a material defect, that the date 3, 1879, upon the S. E. & S. E. 29, 10 and had improvements on the land at the might properly be inserted by the attorney, V., 27 W.

date (July 24, 1882,) of cancellation of and that the local officers were justified in The case is before me on appeal by the Rodgers' entry, and that he has ever since allowing the contest. plaintiff from your decision adverse to continued in possession thereof as claimed

Your decision is therefore reversed. him.

by him. This is conclusively proved-in It appears that the land in question was fact, is admitted by Hawkins.

HOMESTEADS. formerly embraced in the homestead entry In the case of McCluskey vs. Thomason

MATTHIESSEN AND WARD VS. WILLIAMS. No. 14,350, of Sallie Rodgers, which was (10 Copp, 4), which was analogous to this, Town Site.—Occupation of a number of buildcancelled on relinquishment by my decision the testimony showed that McCluskey

ings as a town or place of business on a tract of July 24, 1882. By my said decision was resident on the land November 5, of land at date of homestead entry therefor, is the case of said Hawkins vs. Sallie 1880, the date of cancellation of Neel's en- no bar to final entry by the homestead claim. Rodgers, wherein said Massingill appeared try, intending to claim it under the home- ant, should such occupation be temporary in as interpleader, was also dismissed, and stead laws. It was held by the Depart

character, and cease prior to offer of final you were instructed to advise the parties ment that prior to that cancellation the

proof.

Agreement to Convey.--An agreement to convey in interest that the land would be subject tract was under appropriation ; but upon land, entered into by a party prior to hometo entry by the first legal applicant. that event, McCluskey had the same rights stead entry by him therefor, is not considered On August 16, 1882, Hawkins applied a pre-emptor would have bad under the

as evidencing bad faith in making the entry, to make entry, and you allowed him to do pre-emption laws, and he was authorized

should he obtain a verbal release from the

contract prior toentry ; such a contract, in any so, as above. The day following Massin- to enter within three months from the time

case, is no bar to making the final affidavit, gill applied to file a pre-emption D. S. on it became subject to further appropriation inasmuch as it does not constitute the aliensthe land, but his application was rejected (See also case of Murphy us. Taft, 9 Copp, tion which the law prohibits. because of the appropriation of the land 213).

Absolute Conveyance. -An absolute conveyance by Hawkins' entry. It seems that at the Your decision is therefore reversed,

by the homestead claimant of a small portion

of an acre belonging to the homestead tract, same time, you cancelled Hawkins' entry and Massingill will be allowed to make pre- does not disqualify him from making final on the belief that you had erred in per-'emption filing on the land, as applied for. entry, as notice of such a small matter uped

not be taken cognizance of in the administra- tions to purchase are refused, and I will the course taken by the occupants. The tion of the law. so treat the matter.

latter abandoned the premises. Town COMMISSIONER MCFARLAND to Reg. and Rec.,

claimants have not appeared as parties Eureka, Nevada, February 1, 1884. (D. K.)

THE TOWN OF HOT CREEK.
Williams made settlement upon the land ment is not called for to protect the inter-

contestant. Interference by the GovernOn May 31, 1883, you forwarded the papers in the contested case of Franz 0. in 1866, long prior to survey. The town.ests of such claimants, or its own. Matthiessen 'and Lebbeus B. Ward vs. ship plat was filed in your office a few Joseph T. Williams, involving the home days prior to entry by Williams. Soon THE WILLIAMS-DONAHUE AGREEMENT. stead entry of the latter, No. 69, Dec. 2, after settlement by Williams and others, On March 30, 1875, prior to survey of 1875, for N. E. I of N. W. 1, N. W. # of some houses and cabins were erected by a the land and entry by Williams, the latter N. E. d, and S. of N. E. I, of section 33, number of parties on the N. E. of said entered into a contract with M. M. DonaTp. 8 N., R. 50 E.

section, within the boundaries of the tract hue, whereby he agreed to convey to DonWilliams made final proof in support of claimed as a homestead. Williams al- ahue a certain parcel of land, embracing a his entry October 22, 1882, before the lowed this to be done, and encouraged it large portion of the homestead tract, by County Clerk, and, ex-officio, the clerk of for a time, thinking that the place might good and sufficient deed, within a speci. the fifth judicial district court of Nevada, grow, in view of the mining interests in fied period after receipt of patent for the in and for Nye county. The proof is in the vicinity. After the erection of from land from the Government, in the event the usual form, and shows that Williams twelve to twenty small structures, the that survey thereof should take place prior has improvements on the land worth over building ceased. At one time the little to March 30, 1876, upon payment of the $10,000. On the day that proof was made, community had a boarding house or two, price fixed. The land was surveyed prior application to contest the entry was filed a store, two saloons, (“doggers” or “dead-to the latter date. On May 11, 1882, long in your office hy Richard Glyas, as at- falls,") a blacksmith shop, a dentist's after entry by Williams, Donahue assigned torney in fact for Franz 0. Matthiessen office, and a post-office, but no town organ- his rights under the agreement to Matthiesand Lebbeus B. Ward, and on the follow- ization was formed. The little place was son and Ward, the contestants. ing day you ordered a hearing, which, first christened “Irvington,” but was sub On making homestead entry the appliafter a continuance commenced on March sequently named “Lower Hot Creek," or cant is required to make affidavit that the 26, 1883, objection to the action taken by " Hot Creek.” The population was mostly entry is not made“ either directly or indiyou was not made by defendant. On Feb of the floating kind, and diminished during rectly for the use or benefit of any other ruary 5, 1882, applications by contestants, the years from 1868 to 1880, and the site, person;" and on making final entry he and one by Lafayette Joslyn, as trans- subsequently, was almost entirely aban- must swear “that no part of such land ferees to purchase the lands under the act doned. One whiskey shop closed about has been alienated, except as provided in of June 15, 1880, and the final proof of the year 1868, and the other was consoli- section twenty-two hundred and eightyWilliams, which had been sent to this dated with a store and the post-office, eight.” (Sec. 2288, R. S.) office by you, were returned for reference a small building containing the three The testimony shows that upon survey on trial of the case. branches of business.

of the township, Williams had at least two Matthiessen and Ward, as the final as Finally the mail bags visited the town interviews with Donahue in respect to the signees under an agreement entered into no more, and the sale of whiskey ceased, agreement. The latter verbally released between Williams and one M. M. Donahue, and at the time of the hearing the popula- the former from the contract, stating in hy which Williams was to execute a deed tion consisted of Mr. Glyas, attorney be substance that he did not consider the upon issue of patent to him for a parcellow for contestants, and a Chinaman. tract worth the price agreed upon, beof land, a large portion of which is em By the second and third subdivisions cause subdivisions aggregating 160 acres braced in the said entry, and as the final of section 2258 of the Revised Statutes, could not be taken

to inassignee under an agreement between lands included within the limits of any clude all the meadow land described in Williams and Lafayette Joslyn, describing incorporated town, or selected as the site the agreement. This agreement was apa portion of the homestead tract, appear of a city or town, or actually settled and pended to a deed of conveyance by Wilas interested parties.

occupied for purposes of trade and busi- liams to Donahue, of a ranch further up These agreements will be more fully set ness, and not for agriculture, are excluded the creek, northwesterly. Donahue had forth hereinafter. Contestants also appear from pre-emption.

executed a mortgage to secure payment as informers, protesting against the entry On these statutory inhibitions contest for this ranch, and he told Williams, at on the ground that the homestead tract ants rely to defeat the application of Wil- one of the interviews mentioned, that he embraced a town, and was occupied as a liams for a patent, inasmuch as lands not did not intend to pay for the lands in place of trade and business prior to subject to pre-emption are not subject to these ranches, and that he would have entry.

a homestead entry. (Section 2289 R. S.) nothing more to do with the matter; and You decided that the entry was properly The evident intention of Congress in he also told him to foreclose the mortgage allowed, that no valid adverse claim ex-enacting the provisions of Section 2258, mentioned, which was done. It seems ists, and that Williams is entitled to a referred to above, was to prevent specula. that Williams at first did vot intend to patent for the land; and appeal from your tive appropriation of town-sites or marts apply for title to the lower tract (the tract decision was duly taken.

of trade under cover of the pre-emption in question) under the homestead law ; The charge that the land was occupied privilege; and the policy had in view, to and when he did conclude to do so, he atas aforesaid, and that the entry for that give precedence to appropriation by act- tempted to obtain a release from the said reason is invalid, is not consistent with ual town claimants, must be respected in contract in the manner stated. Upon. application to purchase the land as trans- the administration of the pre-emption, verbal release therefrom, he endeavored ferees under the second section of the act homestead and town-site statutes. But, to save his home and improvements by of June 15, 1880, inasmuch as such pur- in this case, so far as the town is con- making homestead entry, and I am of chases are restricted to lands properly cerned, violence to the law would not be opinion that he did not make his homesubject to homestead appropriation, at committed by issuing patent to Williams. stead affidavit in bad faith. I have also date of the entries covering them. But I The inhabitation of the.cabins was tem- concluded that, so far as this agreement is gather from the nature of the proceedings porary in character. Nearly all the land concerned, he was not disqualified from and papers in the case, that contestants was used as farm land, and not for town making the final affidavit, stating nondesire the entry canceled because of inva- occupation or as a place of trade or busi- alienation, as aforesaid. For, conceding lidity in its inception, or forfeiture be- ness. Formal selection of a town-site was that the release was not in due form, the cause of alienation of the land by the not made. Gravity of intention to found contract is not binding, and is void and entryman, in the event that their applica-l a town was never evinced, as shown by i of no effect; it could not be enforced upon

up so

as

issue of patent to Williams. See Dawson same." Neither the boundaries of the lot to the tract), a warranty dced for the S. vs. Merrille (2 Nebraska, 119), and Oaks upon which the house stood, nor the area of the tract. The testimony is conflictvs. Heaton (Lewis' Leading Cases, 224). of the lot, is stated in the deed. I need ing as to whether this contract was actIf the contract is void and cannot be en- not discuss the question of whether any ually made upon the day of its date, or forced, it does not constitute the alienation land was conveyed by the deed, or whether, subsequently to the date of Anderson's which the homestead law prohibits. There if land was conveyed, title to a town lot entry; nor is this material for the purwas no attempt to transfer or alienate the only was warranted; in any event, Williams poses of this decision, because the prinland as of date of the contract; an abso- is not disqualified as a homesteader by ciple to be applied will embrace either date. lute conveyance was not made; and the the transaction. The buildings in the The question involved is as to the effect transaction, therefore, does not disqualify "town" did not cover more than an acre of this contract upon Anderson's entry; Williams from obtaining title. Decision or two; the parcel of land on which the and the rulings of your office and of this of the Hon. Secretary of the Interior, De building sold stood, did not contain more Department have generally held that, if a cember 29, 1883, in the case of Aldrich vs. than a small fraction of an acre. Such a contract of this character could be en. Anderson. [Published herein.

very small tract need not be taken cog- forced against the homestead entryman,

nizance of in the administration of the it was fatal to his claim; otherwise not. THE WILLIAME-JOSLYN AGREEMENT.

homestead law in this case. (Acting Further consideration of the question Lafayette Joslyn filed a pre-emption Secretary's decision of August 11, 1882; leads me to the conclusion that such a declaratory statement December 4, 1875, case of State of California vs. Alari.) alleging settlement in 1866, embracing 120

contract, if not absolutely forbidden by acres of the land entered by Williams. APPLICATIONS BY CONTESTANTS TO PURCHASE

statute, is hostile to the whole spirit and On April 13, 1876, Williams and wife en- UNDER THE SECOND SECTION OF THE ACT

purpose of the homestead law, and to the tered into an agreement with Joslyn, to

OF JUNE 15, 1880.

public policy relative thereto, and can not

be enforced. This view is held by the convey portions of the land in considera- One application to purchase was made Court in Dawson vs. Merrille, (2 Nebraska, tion of the latter's relinquishing his claim, by Matthiessen and Ward under the agree. 119), in which they say that if the proand also entered into a bond conditioned ment of Williams with Donahue; a second visions of the homestead law do not difor the fulfillment of the agreement under application was made by Matthiessen and rectly prohibit the making of such conpenalty of $3,000. This, it is stated by Ward under the agreement of Williams tracts, they do most clearly indicate a defendant, was done to avoid a contest. with Joslyn; and a third, for a portion of policy adverse to them, and hence that Joslyn subsequently conveyed his interest the land, was made by the latter and filed being against public policy, a court will in the land, and Matthiessen and Ward by contestants. I need not consider all not lend its aid to enforce them. And in have shown by record evidence that they the points suggested by these applications. Oaks vs. Heaton et al, (44 Iowa, 116,) where are the final assignees.

Holding, as I do, that the agreements and the question was like that in the present The land described in said agreement is deed mentioned are no bar to Williams case, the court held that an occupier of not identical with the tract designated as obtaining a final certificate as the basis of land under the homestead law, cannot the “ Joslyn tract" on the diagram filed a patent, and he having applied for one, make a valid contract to convey his homeas an exhibit. Its exact size and shape and shown compliance with the homestead stead when he shall bave acquired the are not shown, but it is concluded, from law as to residence, improvement and cul. the language of the agreement, that it tivation, the applications to purchase are

If such contract is not vailid, it is void, contained a "corral," and two acres ad- refused. ditional thereto. On the part of the de

and can not be enforced against the party

For the reasons given, the contest is dis. fendant, it is contended that this agree- missed.

making it; and being without legal sig.

Notify the parties accordingly nificance, it is not the alienation which the ment should be treated as a contract en- direct, allow the usual time for appeal, law prohibits. tered into by Williams with a co-settler to and make due report. Meanwhile the

The rulings in Nebraska and Iowa acconvey a portion of the land, as provided matter of following final entry by Williams, cord with the well-settled doctrine that a in the pre-emption law. (Sec. 2274, R. S.) must he held in abeyance. It is true that, under late departmental

contract inconsistent with public policy

can not be enforced. (Coppell vs. Hall, rulings, joint entry may be made by two

ALDRICH VS. ANDERSON. or more homesteaders under the circum- Contract to Sell.–A contract to sell part of a How., 314; Scudder vs. Andrews, 2 MC

7 Wall., 542; Marshall us. R. R. Co., 16 stances pointed out in this statute, but no homestead claim is void, and will not affect Lean, 464; Leavitt vs. Palmer, 3 N. Y., 19.) ruling has been made that a contract to the legal status of the claimant. Only an convey a portion of the land in a home- absolute conveyance will defeat his right.

I am of the opinion that a contract made stead claim, in adverse possession, may

SECRETARY TELLER to Commissioner McFars prior to the acquisition of title to convey be entered into thereunder. The second

land, December 29, 1883.

land embraced in a homestead entry, after method provided in the statute for the ad. Aldrich vs. Joseph Anderson, on appeal if not illegal

, against the public policy, I have considered the case of Elisha B. the entryman shall have acquired title is, justment of the conflicting interests of set. by Aldrich from your decision of April 6, and can not be enforced, and that an abtlers found upon survey to have improve. 1882, dismissing the contest. This case solute conveyance only can defeat obis ments on the same subdivision, is not ap. was initiated July 22, 1880, on allegations right; and hence that Anderson's con plicable to homestead cases.

tbat Anderson was "holding the land prohibit the making of such contracts, it speculative purposes, and had already sold the land embraced in his entry, was of no clearly indicates a policy adverse to them:

one-half thereof-having made a written legal effect, and can not change his status

contract therefor." see decision above cited.

upon the record. ment, like the one afore-mentioned, is dier's declaratory statement September

It appears that Anderson filed a sol- I affirm your decision. void and cannot be enforced, and therefore

LORENZO VAN GIESON. does not affect the status of the home 15, 1876, for the S. E. of Sec. 10, Tp. 8, steader.

R. 10 W., Bloomington, Nebraska, and Duress-Opportunity to Show Same-Quit-claim

made homestead entry therefor March 7, Deed.-Where a homestead claimant’s final DEED OF WILLIAMS TO GARRETT AND JOSLYN. 1877. On December 16, 1876, (as appears proof is satisfactory except that he has made On January 13, 1874, Williams con- from the date thereof) he signed a written

a quit-claim deed for the land in question, he

should be allowed an opportunity to prove veyed to Chas. Garrett and Lafayette contract with one Carkins, whereby, for

his allegations that such deed was made under Joslyn, with warranty, a brick building the consideration of $100, he agreed to duress. in what was then the “ town” of Hot make and execute to Carkins, on or before SECRETARY TELLER to Commissioner MeFurCreek, together with “all right to any May 1, 1881, (at which date it was sup- land, January 22, 1884. lands belonging or appertaining to the posed Anderson would have acquired title I bave considered the appeal of Lorenzo

legal title.

This agree

*

Van Gieson from your decision of January According to the allegations of the home

BENNETT VS. BAXLEY. 19, 1883, refusing to order the issuance of stead claimant, it is applicable to this Six Months. —How the six months within which final papers on the proof submitted by him case.

a homestead claimant must begin residence under his homestead entry, No. 1758, for If he signed the quit-claim deed under should be calculated. the E. } of the S. W. 1, Sec. 12, Tp. 13 N., duress as above defined, the instrument ACTING-SECRETARY JOSLYN to Commissioner R. 8 E., M. D. M., Sacramento, Cali- should be treated as inoperative and void,

McFarland, January 22, 1884. fornia. and bis act should not be held to be an

I have considered the case of L. 0. E. You state that the proof is in all re- infraction of the law (Sec. 2291, R. S.), in Bennett vs. William A. Baxley, involving spects satisfactory, except it appears that such a sense as to take away any home the N. E. Å of Sec. 32, Tp. 10, R. 11, the claimant on the 22d of January, 1881, stead rights which he may otherwise have Natchitoches, Louisiana, on appeal by executed a quit-claim deed of the tract in acquired. He should have an opportunity Bennett from your decision of April 18, question to J. A. Hoagland.

to furnish proof in support of his aver-1883, dismissing the contest. Claimant himself testifies to the execu- ments, and if the facts are found to be as It appears that Baxley filed an affidavit tion of said deed, but says he was forced, he states, his entry should be finally as required by Section 2290 of the Revised through threats of personal violence from allowed and patent should issue, the proof Statutes for homestead entry of the tract Hoagland, to make the transfer, he being being in other respects satisfactory. Your in question, November 20, 1880, and that at the time indebted to said Hoagland to decision is modified, and you will be gov- May 21, 1881, Bennett initiated a contest the amount of two hundred dollars.

erned, in further considering the case, by against him for abandonment under Sec. He also alleges, and the proof goes to the views herein expressed.

2297 of the Revised Statutes, which proshow, that he is still in quiet and peaceable

vides that if at any time after the filing of possession of the land, never having sur

the affidavit, and before expiration of the rendered the same. On these facts you

JAMES M. DEWEESE ET AL.

five years mentioned in Section 2291, it is find that he cannot make the affidavit of

proved to the satisfaction of the Register non-alienation required by Section 2291 of Internal Improvement Grant-Double Minimum of the land office that the person who filed the Revised Statutes, and you therefore

Land. - Where double minimum land has such affidavit “has actually changed his

been selected and certified to a State under decide that he is not entitled to final cer

the internal improvement grant, homestead residence or abandoned the land for more tificate, at least not until the deed in ques entries thereon can not permitted, notwith- than six months at any tiine * the tion shall have been annulled by the pro

standing such certification is alleged to have land so entered shall revert to the govern

been erroneous. per court, or a reconveyance shall have

ment." been made by Hoagland of his interest in SECRETARY TELLER to Commissioner Mc Farland, Under the express provisions of this the land. You suspended the homestead January 18, 1884.

section, as well as under the ordinary conproof presented by claimant, giving him a I have examined the case presented by struction of statutes in respect to the reasonable time within which to submit the appeal of James M. Deweese et al., computation of the time within which an evidence showing annullment or reconvey- from your decision of July 7, 1883, re- act is to be performed, the day of the filance as indicated.

jecting the applications of said parties to ing of Baxley's affidavit inust be excluded, I am unable to agree with you in your make homestead entries upon Sec. 14, Tp. as if he were required to commence resiconclusion that the execution of the quit- 5 N., R. 3 E., Beatrice, Nebraska. dence on the tract within six months from claim deed was necessarily such an act It appears from the records of your and after such filing. The six months as to deprive claimant of the right which office that said section fourteen within which he was required to commence he had otherwise acquired to receive selected by the State of Nebraska March residence on the tract would therefore final certificate for the tract entered by 26, 1868, in part satisfaction of the grant commence November 21, 1880, and expire him as a homestead. It is true section of lands made to said State for internal May 21, 1881, and he had the whole of the 2291 of the Revised Statutes forbids the improvements, September 4, 1841, (5 latter day for that purpose. But the land alienation prior to completion of title (ex- Stat., 453); that said selection was ap- does not revert to the government, and cept as provided in section 2288) of any proved by the Secretary of the Interior there are no laches on the part of the part of land covered by a homestead en- March 29, 1870, in “clear list " No. 7, and entryman in this respect until after his try; but claimant avers that through that a certified transcript of such approved abandonment" for more than six months." threats of great bodily harm, and in order list was transmitted to the Governor of Clearly, then, this contest, brought on May to protect his life, he was forced to sign said State, April 7, 1870.

21, was premature, and was initiated at a the quit-claim deed to Hoagland. If this May 31, 1883, the appellants presented date when Baxley could-if he had not averment be true, and the circumstances to the local office their applications to previously done so-commence residence point to its verity, I do not think his act make homestead entries upon said section. on the tract and be within the statutory can properly be regarded as a violation of The applications were rejected on account requirement. Section 2291 of the Revised Statutes. of the prior disposition of the lands to the I affirm your decision. Consent is the very essence of a contract. State, as shown by the record, and

you Without free agency there can be no con- attirmed such rejection.

DODD VS. GAMBLE. tract, because there is no consent. Where It is urged by the appellants that at the there is compulsion, there is no free agency time when the State selected this section Presumption of Death.-—In the absence of posi

tive proof, no presumption of the death of a -no actual consent, and consequently no it was not subject thereto, because it was party can be indulged until after the expiracontract in law. A deed or other written double minimum land, being an even num

tion of seven years. obligation or contract procured by means bered section within the limits of the grant SECRETARY TELLER to Commissioner McFarof duress is inoperative and void. Brown to the Burlington and Missouri River Rail land, December 28, 1883. vs. Pierce, 7 Wall., 214 ; Baker vs. Morton, road Company, by the act of July 2, 1862,

I have considered the case of W. C. 12 Wall., 157; United States, Lyon et. al. and that therefore the certification thereof Dodd vs. Reason Gamble, involving homevs. Huckabee, 16 Wall., 431.

to the State was erroneous and passed no stead entry No. 11,492, made by Gamble “By duress, in its more extended sense, title.

July 7, 1874, under the provisions of the is meant that degree of severity, either The approval and certification of this act of June 8, 1872, covering the S. E. . threatened and impending, or actually in- land to the State was a final adjudication of Sec. 29, Tp. 7, R. 3, Concordia, Kansas, flicted, which is sufficient to overcome the of all questions pertaining to the title on appeal by Dodd from your decision of mind and will of a person of ordinary firm- thereto, so far as this Department is con- February 14, 1881, dismissing the conness." (2 Greenleaf on Evidence, 293.) cerned, and you very properly refused to test. This doctrine was adopted by the court permit said entries to be made.

The records of the War Department in the cases above cited.

Your decision is therefore affirmed. show that Gamble served two years, nine

was

man.

months and twenty-one days as a volun- cannot be applied, in the absence of posi You are advised that said decision is not teer in the United States service, during tive proof, until seven years after the dis- to be regarded as retroactive, but as de the late war. appearance of Reason.

signed for the government of local land On July 7, 1877, Samuel P. Gamble, the It appears that the father of the entry- officers in the future. Proofs heretofore father of the entryman, offered final proof, man, Samuel P. Gamble, on learning of made will not be interfered with. In pendclaiming that the latter died on or about the alleged decease of Reason, immediately ing cases, where notice to make proof has March 1, 76, leaving neither widow nor entered into possession of the land, and already been published, the proofs may be children, and that, as heir of the deceased has continually resided thereon since, cul- taken according to the published notice. entryman, he is entitled to the benefits tivating and improving it from year to But in future the final affidavits must be granted by the Soldier's Homestead Act year, as the representative of the entry- taken before the judge of a court of record of June 8, 1872.

( who may be a probate judge) or before On December 4, 1877, your office de The allegation by Dodd of abandon- the clerk of the proper court when such a clined to issue final certificate, for the ment, having no foundation in fact, drops clerk is duly qualified and authorized to reason that the act of June 8, 1872, ap- out of the question; and as a consequence act as set forth in the decision reserred to. plied to no other persons than the widow he cannot be considered a party.

In pre-emption and commuted homeand minor children of the deceased Your decision dismissing the contest is stead cases, when the affidavit is made besoldier. affirmed.

fore a judge of probate acting as clerk of A contest hearing was ordered on the

his own court, it must so appear in the ground of abandonment, and held June 6,

S. A. BAKER.

jurat. 1873, at which it was shown that Reason COMMISSIONER MCFARLAND to S. A. Baker, Gamble built a dug-out, broke and culti Nordland, Dak., Jan. 26, 1884. (S. W. S.)

CIRCULAR. vated ten or fifteen acres of land to corn In case a homestead entry embracing

DEPARTMENT OF THE INTERIOR, during 1874, and resided thereon until an area in excess of 160 acres, (the party

GENERAL LAND OFFICE. February or March, 1876; becoming dis paying for such excess) is canceled for re WASHINGTON, D. C., January -, 1884. couraged by the continual devastation of linquishment or abandonment, the party To RegistERS, U. S. LAND OFFICES : the crops by grasshoppers, he with his to the entry has no claim to the excess in It having come to the knowledge of this brother left Kansas, ostensibly for Dakota. area over 160 acres. In other words, all Office that excessive charges are made by During June, 1876, information was re- the land embraced in such entry reverts the proprietors of newspapers in certain ceived in an indirect manner that Reason to the Government.

States and Territories, for the publication had been killed near Deadwood, Dakota.

of notices of intention to make final proof, A decision was rendered by your office

INSTRUCTIONS.

under Act of March 3, 1879, you are diJuly 16, 1879, adjudging the entry for- Publication of intention to make final proof. rected hereafter, in designating papers in faited, by reason of abandonment of the ACTING COMMISSIONER Harrison to Reg. and which such notices shall be published, to land by the entryman for more than six Rec., Salina, Kansas, May 23, 1883. (J. W. S.) designate only such reputable papers of months.

Relative to the matter of publication general circulation nearest the land apOn a review of the proceedings, it was of notice of intention to make final proof, plied for, the rates of which do not exceed decided by your oflice that a rehearing in case of homestead and pre-emption the rates established by State or Territorial should be granted, for the reason that the entries, I have to state that the practice laws for the publication of legal notices. entryman was entitled by law to an ab- heretofore has been, to require such notice N. C. McFARLAND, Commissioner. sence from the land during the period of to be published for five successive weeks- Approved: H. M. TELLER, Secretary. Janalleged abandonment. At the rehearing, but, under the present ruling of the De

uary 30, 1884. held February 14, 1880, the proof offered partment, it is held that the notice must was directed towards determining the be published for a period of six successive

BRAY VS. COLBY. question of the alleged decease of the weeks. See circular of March 20, 1883. Deserted Wife-Final Proof Act of June 15, entryman. No direct evidence of death

I have, therefore, to direct that, from 1880--New Rules, Agent.- A deserted wife was presented. One witness stated that and after the date of receipt of this letter,

cannot make final proof or obtain patent in during the summer of 1876, in Deadwood, you will require all parties to publish the

her own right by virtue of her husband's Dakota, he met one of the parties that ac-notice of intention to make final proof in

entry. Nor has she a right of purchase under companied the entryman, who informed accordance with the said circular of March

the act of June 15, 1880, by virtue of her hus

band's entry. Five rules are laid down, which him that Reason Gamble had been shot 2d, 1883.

recognize a deserted wife or child as the and killed by soldiers, while attempting

This ruling, however, is not intended to

absent husband's agent. to escape from their custody. Another witness testifies that he saw a letter, or may be published prior to the receipt apply to parties where the notice has been SECRETARY TELLER to Commissioner McFar

land, January 29, 1884. written by Reason's brother, in which it of this letter.

I have considered the case of Frank S. was stated that Reason had died from the

Bray e's. Walter E. Colby, involving the etfects of a gun-shot wound; while a

INSTRUCTIONS.

N. E. of the S. E. and the N. E. of third witness states that he was in DeadFinal affidavits in Dakota homestead and pre

the N. E. of Section 24, Township 20 wood, Dakota, during March, 1878, when

emption cases.

south, Range 27 E., and the west of the two men were brought in on a charge of COMMISSIONER McFarland to Reg. and Rec., N. W. of Section 19, Twp. 20 S., Range horse stealing ; that a chance acquain Huron, Dakota, February 9, 1884. (J. W. L.) 28 E., Gainesville, Florida, on appeal by tance of witness told him they were the I am in receipt of your letter of the 2 Bray from your decision of Alljust 15, Gamble boys, whom the informant knew inst., relative to my decision of January 1832, dismissing his contest. in Kansas. Excepting the testimony of 15, 1884, in respect to the powers of cer It appears from the record that Colby this last witness, nothing appears to show tain clerks of courts to take final atlidavits entered the land in March, 1878. placed that Reason has been seen or heard of in homestead and pre-emption cases, and his family thereon, and in October, 1878, alive, since the alleged date of decease. inclosing a newspaper slip purporting to be deserted them; and that some ten months

It is the general belief of the people a copy of said decision. The slip trans- thereafter, his wife, Eva A. Colby, with living in the vicinity of the claim, that the mitted omits an important paragraph rec- their child, left the land and the State, entryman is dead'; but when all the ognizing the authority of other judges and (for the purpose of supporting herself, as circumstances surrounding the affair are clerks, than judges and clerks of district she says), and that during her absence, considered, it appears that suflicient courts, to take such affidavits. A correct she sold the improvements on it. Contest doubt is raised to preclude a reasonable copy of the decision will be found in Copp's against her husband on the ground of presumption of death; which doctrine Land Owner for Feb. 1, page 344. abandonment was initiated January 17,

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