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be offered at public sale, the tract entered, was intentionally withheld by the Register from sale, for his own claim to it, to be carried into a title, and it is entirely clear that he did not pursue the course which the law just referred to requires, where a Register claims by pre-emption, lands within his own district. The next entry at the same office, No. 2742, it was charged, was effected in the same illegal manner, and though the admission of the Register is not so explicit in this case as in the other, I think it cannot be confirmed, unless on notice to the party making the entry and the party for whose benefit there is reason to believe it was made, they, or either of them, are able to show, that the Register had no interest direct, or indirect, in the consummation of the title, or in withholding the land from public sale.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
No. 530. The Board of Suspended Entries has no jurisdiction in cases of rejected applications. Certain locations by mail contractors to be suspended.
DEPARTMENT OF THE INTERIOR,
Washington, May 26, 1859. Sir :-Herewith, I return the papers which were submitted, with report of the 2d instant, in the matter of the claims of Frederick Emory to certain lands in Kansas, under provisions of the Act of Congress of 3d March, 1855.
Mr. Emory's application to the Land Office at Ogden, to enter by preemption, as a mail contractor on route, No. 15210, section 1, of township 11, of range 6, east, was rejected by the Register on the 17th January, 1859, on the ground that said route did not constitute part of a connected route from the line of the States west of the Mississippi, to the Pacific." Such had also been the decision of the General Land Office of the 29th December, 1858, but on a change in his views on this point, the Commissioner submitted the same to the Department in a report of the 9th ultimo, and my decision of the 27th, sustained the action of the local officers.
That application therefore, stands rejected, and I am not disposed to reconsider the case; nor do I think that the Board of suspended entries, has jurisdiction, in any case of rejected application, to enter lands.
The report of the Commissioner of the 2d instant, also submitted for confirmation the locations, amounting to one section of land, which Mr. Emory effected at the Land Office at Kickapoo, on the 28th June, 1858. These locations were allowed, so long after the Circular of September, 1857, was issued, that we cannot infer that the claimant and the officers were, at the time, unaware of the contents of that circular. The officers seem rather to have admitted the entry, believing their action to be consistent with the requirements of the circular, but my decision of the 27th ultimo, was to the contrary.
The locations covering six hundred and forty acres in township 9, of range 10, Kickapoo district, do not therefore, appear to have been, in all respects, like the cases of Lowry and Brackett, to which reference was made in my letter of the 27th April last.
After mature reflection, I have concluded to direct that these entries of Mr. Emory, and all other similar ones, remain suspended in your office
till further order, as it is my present purpose to call the attention of Congress in my next annual report to this class of cases, in order to obtain, if possible, the direction of the Legislative power, as to the final action that shall be taken in regard to them.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
No. 531. Where a Claimant did not move with his family on the land until after
his location, but did so before the expiration of one year, and this taken in connection with other facts, it is held that he is entitled to a confirmation.
DEPARTMENT OF THE INTERIOR,
June 29, 1859. Sir:-The facts presented by the appeal of Green J. Underwood, from your decision adverse to this pre-emption claim to certain land in Monroe, Louisiana District, have been considered, and the papers pertaining to the contest between said claimant and John H. MIntyre submitted by your letter of the 28th of February last, are now returned.
Said Underwood, upon making proof of compliance with the pre-emption law, was permitted to locate a land warrant upon the land in question, on the 2d August, 1856. He claimed to have commenced his settlement on the 14th March, 1856. Upon a reinvestigation of the case, it was found that said claimant did not actually move his family upon the land until after said warrant location.
He did inhabit the same, however, for some months previous to the expiration of the year allowed a settler on offered land to make proof and payment, and although the law does not intend that twelve months shall be allowed in which to make settlement, and to commence inhabitancy, yet the fact that this claimant did actually inhabit the land before the application to locate scrip, in connection with evidence exhibited of his honest intent, creates a strong equity, and attaches a priority of claim on his part which should be protected.
render an earlier occupancy of the land with his family incompatible with them, together with the absence of any evidence of intended fraud, I am of the opinion that said Underwood is entitled to an adjudication of his entry or location under the Act of 26th June, 1856.
You will, therefore, be pleased to report the same for confirmation under that act.
: J. THOMPSON, Secretary. Commissioner of the General Land Office.
No. 532. A previous contract to sell a portion of a Pre-emption claim, vitiates the entry, and the same cannot be confirmed under confirmatory laws.
GENERAL LAND OFFICE,
July 2, 1859. Sir:-Herewith, I have the honor to enclose you all the papers connected with the pre-emption claim and entry of John A. Harbach, within the corporate limits of the City of Omaha, and in the district of lands subject to sale at Omaha, Nebraska Territory. Harbach's entry or location, was made per warrant No. 71061, Act of 1855, on the 21st of November, 1857, and embraced the south half of northeast quarter, and south half of northwest quarter, section 15, township 15 north, range 13, east. Soon after the entry was made, affidavits were received at this Office, impeaching Harbach's claim, and in consequence thereof, a reinvestigation of the case was ordered, per letter from this Office, dated March 6, 1858. The investigation was held, in pursuance of the order contained in said letter, on the 12th May, 1858, and, from the testimony elicited, the Register and Receivėr decided adverse to the pre-emptor's right. An appeal from their decision having been taken to this Office, the testimony was forwarded here by the Register, per letter of 5th June, 1858, and after a careful examination of the facts in the case, the acting Commissioner expressed his concurrence in the decision of the Register and Receiver, per letter to them of 24th ult., on the ground mainly, that the location by said Harbach, was made in fraud of the 13th section of the Act of 1841.
From the decision of this Office, Messrs. R. M. Young and H. L. Stevens, attorneys for Harbach, have appealed and filed their exceptions, which are enclosed herewith, and will be briefly noticed.
1st. The entry was made in fraud of the 13th section of the Act of 4th September, 1841, as uniformly construed by this Office. Said entry was made on the 21st November, 1857. On the 26th January, 1857, ten months prior to the entry, Harbach executed an unqualified quit claim deed to Messrs Jones and Macon, of certain portions of the identical land embraced in his pre-emption. (See copy of deed “A” taken from the records of Douglass county.)
2nd. The deed “A” referred to, acknowledged by Harbach's counsel to be genuine, is evidence in the case," establishing Harbach's violation of the 13th section of the Act aforesaid. (See testimony, page 5.)
3d. The deed of conveyance from Harbach to Jones and Macon, under date of 26th January, 1837, was in law an “agreement” or “contract," by which the title which Harbach might therafter acquire from the government of the United States “ should enure in whole or in part” to the benefit of another person. At the time of the conveyance his title to the land, if he had any, was merely inchoate. It was to be perfected at a future time. By giving an unqualified quit claim deed, he conveyed all his right, title and interest in and to the land deeded, present and prospective; while, therefore, the title of the vendees could only have been perfected, so far as the rest of the world was concerned, upon the perfection of Harbach's title, yet so far as he, (Harbach,) was concerned, their title was perfect from the day of the execution of the deed. It follows, as a consequence, that, as they never re-deeded to Harbach, the “ agreement” or “contract" made in January, 1857, between the vendor and vendees aforesaid, was such a one as, had the fraud been consummated, would have caused the title which Harbach might have acquired, by patent from the
Government, to have enured “in whole or in part, to the benefit of other persons besides himself.
4th. There is a map on the files of this Office, and it is enclosed herewith, which proves conclusively that all the subdivisions or lots conveyed by Harbach to Jones and Macon, are within the boundaries of his pre-emption entry, made November 21, 1857.
5th. The testimony of Augustus Macon, one of the parties to the aforesaid deed, that at the time of the making of the deed, the parties thereto supposed that the lands were in another section, is not admissible. "The law places more reliance upon written than oral testimony; and it is an inflexible rule that parol testimony is not admissible to supply or contradict, enlarge or vary the words of a contract in writing. That would be the substitution of parol to written evidence under the hand of the party, and it would lead to uncertainty, error and fraud.” (See Kent, vol. 2, p. 757.)
6th. Whether or not the oath of the appellant, under the 13th section of the Act of 1841," is conclusive upon the Commissioner of the General Land Office, the evidence of fraud in the case, makes it incumbent upon me to suspend the entry and prevent the issuing of a patent thereon, at least until the evidence of fraud is removed by the courts, and this purpose is subserved by a cancellation of the certificate of entry or location.
7th. From the foregoing statements and positions of law, it results that the entry of Harbach cannot be filed for confirmation under the Act of 26th June, 1856.
Your obedient servant,
Thos. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Secretary of the Interior.
Affirmed 6th October, 1859. See - Town Site” division, p. 430.
No. 533. Where a Pre-emption Claimant has filed for one hundred and sixty acres,
but is unable to pay therefor, and his entry of a portion of the tract was permitted, the same may be confirmed.
DEPARTMENT OF THE INTERIOR,
Washington, December 2, 1859. Sir :-In the case of Wade H. Bostick, who has appealed from your order of July 12, 1859, to the Register and Receiver at Monroe, Louisiana, I am of the opinion that the cancellation should be set aside, and the entry submitted for the favorable action of the Board of Suspended Entries.
The claimant appears to have been acting in good faith. His reason for not entering all the land he filed for, is that he was unable to pay for the whole, and the land he has entered embraces his house and improvements.
The papers which accompanied your report of the 28th ult., are now returned.
J. THOMPSON, Secretary.
GENERAL LAND OFFICE,
May 17, 1844. Gentlemen :-Should there exist in your land district any instances where the sixteenth section, usually set apart for school purposes, is interfered with in any township or fractional township, either wholly or partially, by private confirmed claims or donations, you are to regard such township or fractional township as entitled to a selection, for the use of schools, of other lands in the district, under the provisions of the Act of Congress approved May 20, 1826, (No. 18,) entitled “An act to appropriate lands for the support of schools in certain townships and fractional townships not before provided for," the Secretary of the Treasury having recently rescinded the tenth paragraph of the instruction contained in the printed circular of August 30, 1832, in relation to school lands under the Act aforesaid, which is adverse to the decision now given.
The selections of school land herein intended are to be made under the rules prescribed in the circular referred to.
Very respectfully, your obedient servant,
Thos. H. BLAKE, Commissioner. Register and Receiver.
Under the Act of May 20, 1826, (No. 18,) granting lands for the support of schools, the Secretary of the Treasury (Interior) had power to decide, as between the school trustees, for a township, and one claiming under a private entry, whether the land in question had been duly selected and set apart for the schools of the township; and his decision was final.--Campbell v. Doe, 13 Howard, 244; 19 Condensed Reports, 477.
It has always been a cherished policy of the Government of the United States, to appropriate section sixteen, in every township, for the use of schools. Reservations were made in the sale of other lands which contained salt springs or lead mines, but not in the appropriation of section sixteen for schools.
When the State of Michigan was admitted into the Union, it was upon the condition, that every section numbered sixteen, in every township of the public lands, and where such section has been sold or otherwise disposed of, other lands equivalent thereto and as contiguous as may be, shall be granted to the State for the use of schools.
When the lands are surveyed and marked out, the title of the State attaches to number sixteen, and if there be no legal impediment, becomes a legal title. The Act of March 1, 1847, providing for the sale of mineral lands, does not include section sixteen, which remains subject to the compact with Michigan.— Cooper v. Roberts, 18 Howard, 173.
Where a part of section sixteen is disposed of, the State is not bound to select the residue, but may take an equivalent or other sections, (under Cherokee Treaties, July, 1817, and February, 1819.) The act of selection of a section in lieu of section six