While these decisions have not been formally overruled, a decision which seems to be more in harmony with the provisions of the statute was made in the case of Farris v. Mitchell (11 L. D., 300) where it was held that

the occupancy and possession of land by one who asserts no record claim thereto within the period provided by law does not exclude such land from entry under the timber culture law.

This disposes of that alleged error, and leaves for consideration the question as to whether the appeal from the decision of the register and receiver was or was not taken in time.

Notice of the decision was sent to Ayers by registered letter addressed to him at Chadron, Nebraska on the 26th of March, 1888. The rule requires that it should be sent to the parties in interest to "their last known address." At the time the notice was mailed the record did not show that Chadron was ever the address of Ayers. Affidavits were afterwards filed in the case, showing that he never had resided there. Under these circumstances, I think it cannot be held that addressing the notice to Ayers at Chadron was a compliance with the rule, and limited his time for appeal to forty days from the date of mailing the notice. In the case of John P. Drake (11 L. D., 574) it was held that "notice of a decision by mail, will not bind the party to be served if such notice fails to reach him." That case goes farther, however, and holds that

the failure to receive notice cannot be set up by one whose own laches has prevented service in the manner prescribed.

Upon the hearing in this case, the attorney for Ayers refused to disclose the place of residence or the post-office address of his client, and if no effort had been made in his behalf to obtain information as to the result of the trial, I would hold that his failure to receive notice was due to his laches, in failing to furnish the local officers with his postoffice address. It is shown, however, that his former attorney applied to the register and receiver for information as to their decision, and was refused because he had been suspended from practicing in their court, while the new attorney was refused until he filed his authority for appearing in the case. As the appeal was brought within thirty days after notice of the decision was actually received, I think you did not err in accepting and considering it.

I have given the case careful consideration, and while the equities. are largely in favor of Annis, I think the conclusion reached by you is correct, and the decision appealed from is, therefore, affirmed.

HOMESTEAD-ALIEN HEIRS-PATENT.

AGNEW v. MORTON.

Alien heirs of a deceased homesteader are incompetent to make proof and perfect title under section 2291 of the Revised Statutes.

The heirs of a deceased homesteader are not required to personally reside on the land covered by the entry of the decedent in order to perfect title thereto, it being sufficient for such purpose to show cultivation for the requisite period.

Patent should issue in the name of the heirs generally where final proof is submitted by the heirs of a deceased homesteader.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 2, 1891.

The case of Jessie B. Agnew v. Barney Morton is before me on appeal of the former from your decision of April 18, 1890, in which you affirm the action of the register and receiver dismissing his contest against homestead entry No. 3835, made by said Morton, June 29, 1885, for the NE. of Sec. 34, T. 17 S., R. 25 E., Visalia, California.

The facts are substantially set forth in the decision appealed from. The contest affidavit, filed December 12, 1887, charges abandonment, change of residence, etc.; that claimant "has died leaving no heirs who are entitled to perfect said homestead entry."

The service of notice was clearly defective, and the motion made to dismiss the contest should have prevailed. But, since the attorney for the defendant (the heirs) had full power to represent them, and since he subsequently made a general appearance for his clients, by invoking the power of the local officers on questions other than that of jurisdiction, he thereby waived his rights as to the defective service and can not thereafter be heard to complain. Ulmer v. Hiatt et al., 4 (Greene) Iowa, 439; Clark v. Blackwell, Ibid., 441; Anderson v. Rey, 12 L.D.,

620.

It is insisted, as the grounds of this appeal, that the entryman left no heirs competent to make final proof.

The proof shows that the entryman died April 21, 1887; that his true name was Bernard Murtaugh; that he resided upon and cultivated the Jand from date of entry until his death. He left no widow, or children. His nearest surviving relatives are his father and mother (Michael and Bridget Murtaugh), who were at date of hearing residents of Ireland; a sister (Bridget Curley), who resided in the city of New York; the children of another sister (deceased), who also lived in the city of New York; and an aunt (Ann McGinn), who was residing upon the land at the time of the hearing, having moved there February, 1888, for the purpose of cultivating the same for the heirs of the deceased entryman. The evidence fails to show any lack of residence or cultivation on the part of the entryman prior to his death, or lack of cultivation by Ann McGinn after his death.

Volume 2, Civil Code of California (1885), Sec. 1383, defines succession as "the coming in of another to take the property of one who dies without disposing of it by will." Subdivision 2, under the general head of "Succession" is as follows:

If the decedent leave no issue, the estate goes, one half to the surviving husband or wife, and the other half to the decedent's father and mother, in equal shares, and if either be dead, the whole of said half goes to the other; if there be no father or mother, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other.

Under the statute above quoted, the father and mother in Irelandthe entryman having left no will-succeeded in equal shares to his entire personal estate, amounting to the sum of $1,881.43.

Section 2291 of the Revised Statutes provides for the issuance of patent, after satisfactory final proof, to the "heirs or devisee," in case of the death of the entryman, leaving no widow. But such heirs or devisee shall be citizens of the United States at the time final proof is made.

It is manifest that the father and mother, while citizens of Great Britain, can not make proof and obtain patent for the land. Being thus incompetent, their right to make final proof and receive patent for the land while subjects of a foreign country is the same as if they had no existence.

Subdivision 3, Sec. 1386, of said Code provides as follows:

If there be neither issue, husband, wife, father, nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation.

It is shown that the sister and the children of the deceased sister were citizens of the United States at date of entryman's death, and being the only heirs, at that time, capable of succeeding to the rights of the entryman, and having given full power to Ann McGinn, who cultivated the land for them, there was no default on their part, though not personally residing on the land. Swanson v. Wisely's heirs, 9 L. D., 31 ; Reed v. Heirs of Plummer, 12 L. D., 562.

When satisfactory proof shall have been made, patent should be issued in the name of the heirs of the entryman generally, without specifically naming them, leaving it to the courts of the State to determine who the particular heirs are, their several rights, etc. (See Instructions, July 16, 1891, 13 L. D., 49.)

The proof failing to show the alleged abandonment, and there appearing to be heirs of the deceased entryman, capable of making final proof, the entry will remain intact, subject to future compliance with

law.

The decision appealed from is accordingly affirmed;

RAILROAD GRANT-INDIAN LANDS-INDEMNITY SELECTION.

NORTHERN PACIFIC R. R. Co. ET AL. v. WALTERS ET AL.

The orders for indemnity withdrawals made November 2, 1866, and December 16, 1871, for the St. Paul and Duluth Company, and the Northern Pacific Company, respectively, did not take effect upon lands embraced within the former Mille Lac reservation, upon which the Indians, through treaty stipulation, had a right of use and occupancy, which then existed, and was not extinguished until due provision was made therefor by the act of January 14, 1889.

Until selection is made and approved no title vests to indemnity lands; and the right of selection cannot be exercised upon land that is covered by existing entries, and is not protected by withdrawal.

The provisions made in the act of January 14, 1889, for the disposition of lands released under said act, did not recognize the cla ims of said companies, and effectually defeats any selection of said land.

Secretary Noble to the Commissioner of the General Land Office, September 3, 1891.

After considering the status of certain lands in townships 42 N., range 25 W., 42 N., range 26 W., and 42 and 43 N. range 27 W., 4th principal meridian Minnesota, formerly embraced in the reservation set apart for permanent homes for the Mississippi bands of Chippewa Indians, under the treaty of February 22, 1855 (10 Stat., 1165), and known as the "Mille Lac Reservation," your office held that the odd-numbered sections in said townships falling within the primary or granted limits. of the grant to the Northern Pacific Railroad Company passed under said grant, but that the lands in said townships falling within the indemnity limits of the grant to that company and also of that to the St. Paul and Duluth Railroad Company were excepted from the orders of withdrawals under said grants and that entries made of said lands prior to the date of selections by the companies should be allowed to stand. There has been no appeal from so much of your decision as is favorable to the Northern Pacific Railroad Company. Each of said companies, however, filed an appeal from so much of said decision as was adverse to its claims.

Subsequently to the treaty of 1855, two other treaties were entered into with these Indians, one under date of March 11, 1863, proclaimed March 19, 1863 (12 Stat., 1249), and the other under date of May 7, 1864, proclaimed March 20, 1865 (13 Stat., 693), by each of which the said lands were declared ceded to the United States. In each of said treaties it was declared not to be obligatory upon the Indians to remove to the new reservation until the United States had complied with certain stipulations, and in each there was a special provision in regard to the Mille Lac Indians, in the following words:

Provided, That owing to the heretofore good conduct of the Mille Lac Indians, they shall not be compelled to remove so long as they shall not in any way interfere with or in any way molest the persons or property of the whites.

It seems that in 1871 many filings, entries and locations, embracing lands within the limits of the original reservation were allowed, most of which were in September of that year and January following canceled by your office.

The further history of departmental action in regard to these lands is fully set forth in the cases of David H. Robbins (10 L. D., 3), and Amanda J. Walters et al. (12 L. D., 52), and it is unnecessary to repeat

it here.

The act of July 4, 1884 (23 Stat., 89), directed that said lands should not be patented or disposed of in any manner until further legislation by Congress. The act of Congress approved January 14, 1889 (25 Stat., 642), provided means for obtaining from the Chippewa Indians in Minnesota a complete cession

of all their title and interest in and to all reservations of said Indians in the State of Minnesota, except the White Earth and Red Lake Reservations,

for the approval of such cession by the President, for the allotment of lands in severalty, and for the sale of the ceded lands, except those tracts upon which there should be "a subsisting, valid preemption or homestead entry." In regard to such allotments it was provided as follows:

Provided further, That any of the Indians residing upon any of said reservations may, in his discretion, take his allotment in severalty under this act on the reservation where he lives at the time of the removal herein provided for is effected, instead of being removed to and taking such allotment on White Earth reservation.

It may be stated in this connection that the Indians residing on the Mille Lac reservation at the dates of the treaties of 1863 and 1864, or a large proportion of them, had continued there and were still residing there at the date of said act of 1889, but have since relinquished all claim to such right of occupancy, one of the provisions of the agree ment with said Indians of October 5, 1889, being as follows:

And we do also hereby forever relinquish to the United States the right of occupancy on the Mille Lac reservation, reserved to us by the twelfth article of the treaty of May 7, 1964 (13 Stat., p. 693).

and consented to remove to the White Earth reservation.

This was the fact when the opinion of the present Secretary was rendered in the case of Amanda J. Walters, et al., (12 L. D., 52).

The St. Paul and Duluth Company claims under the grant to the State of Minnesota by act of May 5, 1861 (13 Stat., 64), which purports to grant "every alternate section of public land of the United States not mineral," etc., and provides further as follows:

but in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, appropriated, reserved, or otherwise disposed of any sections, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, then it shall be the duty of the Secretary of the Interior to select from the lands of the United States nearest to the