became the owner of one hundred and sixty acres of land under the homestead law. In October following, he made settlement upon a tract of one hundred and sixty acres of land belonging to the State of Kansas as school lands, and on the 15th of November of that year he made a contract for the purchase of said land from the State, making the first payment thereon, $48, as required by law, and received a certificate of purchase. On the same day, he sold his interest in these school lands to one J. H. Wiltsey for $75, and delivered to Wiltsey the certificate which he had received, and surrendered to him the possession of the land. John B. Wiltsey, a son of J. H., made the necessary payments for the land, after the $18 paid by Higgason, and received patent therefor from the State. Although the sale of the land, the delivery of the certificate, and the surrender of possession, were made on the 15th of November, 1884, the certificate was not formally assigned in writing until the 20th of that month. This was two days after he made settlement upon the land in controversy, but four days before be filed his declaratory statement for the same. It was also twelve days before Murdock made homestead entry for the land, and before any adverse interest had attached.

The counsel for Murdock contends that Higgason was the owner of the school lands until the 20th of November, 1884, when he assigned the certificate in writing, and that those lands, with his one hundred and sixty-acre homestead, made him the proprietor of three hundred and twenty acres of land, which made him ineligible as a pre-emptor under the first clause of section 2260, Revised Statutes, and that by quitting his residence on the school lands, and going to reside upon the land in controversy, he also violated the second clause of that section.

In my opinion, the contract received by Higgason for the school lands was only an evidence of an equitable interest in the land-the legal title remaining in the State of Kansas-and that he divested himself of his equitable interest therein when he received from Wiltsey the price agreed upon, surrendered to him the possession of the land, and also delivered to him the certificate of purchase.

In the case of Davidson v. Kokojan (7 L. D., 436) it was held that a pre-emptor is not within the second inhibition of section 2260 of the Revised Statutes, who had in good faith, prior to his pre-emption settlement, disposed of the land then owned by him, although a formal deed for such land was not executed until after settlement.

Had he not, however, made the disposition of his equitable interest in the school land, prior to his settlement upon the land in question, he would not have been qualified to make such entry, according to the decision in the case of Ole K. Bergan (7 L. D., 472), where it was held that

the prohibition in the second clause of section 260, Revised Statutes, extends to a removal from land held under a contract of purchase, although the payments there under had not been completed at the time of said removal.

The elementary writers, and the state courts, are uniform in holding

that a contract in parole for the sale of real estate, or any interest therein, with part performance and possession can and will be specfici ally enforced.

Fry on Specific Performance, sections 388 and 417.

Brown on the Statute of Frauds, sections 443–487.

Galbraith v. Galbraith, 5th Kansas 403, and cases cited.

Murray v. Jayne, 8th Barb. (N. Y.) 612.

Kelley v. Stanbury, 13th Ohio, 408.

The counsel for Murdock insists that it was required of Higgason to prove that he was a qualified person to acquire a pre-emption right. This he did, by making oath to the matters required of a pre-emptor by section 2262 of the Revised Statutes, the statements of which affidavit were in no way contradicted, except by the disclosure of the facts already stated and commented upon.

In your decision from which this appeal is taken, you state that you adjudicated the case upon the basis that the settlement of Higgason upon the school lands was bona fide, and that his settlement upon the land in controversy was made on the 18th of November, 1884. These propositions seem to be clearly established by the evidence, as does also the fact that at the time Murdock made his entry for the land, on the 2d of December, 1884, he had full knowledge of the prior settlement, filing and improvements of Higgasou. He therefore made his entry at his peril, and subject to all the rights of Higgason.

From all the facts and circumstances of the case, I am of the opinion that you erred in reversing the decision of the register and receiver of the 24th of January, 1889. The decision appealed from is therefore reversed, and it is hereby ordered that the recommendation of the register and receiver, that the entry of Higgason be approved for patent, and the homestead entry of Murdock be canceled, be carried out.

SCHOOL INDEMNITY SELECTION-ACT OF FEBRUARY 22, 1889.

SHARPSTEIN v. STATE OF WASHINGTON.

The authority conferred upon county commissioners in Washington Territory to locate school indemnity selections may be properly exercised through a duly authorized agent of said commissioners.

The act of February 26, 1859, is a general provision applicable alike to all States and Territories, and authorized the Territory of Washington to select indemnity to cover deficiencies caused by the reserved sections being covered in part by perinanent bodies of water; and land thus selected is not released from reservation by the act providing for the admission of said Territory into the Union.

Secretary Noble to the Commissioner of the General Land Office, October 6, 1891.

On December 7, 1889, Frank B. Sharpstein made homestead application for the NE. 4 of Sec. 10, T. 25 N., R. 4 E., Seattle, Washington, and the same was rejected by the register and receiver," for the reason that

the land applied for is embraced in list No. 2 of indemnity school selections, in lieu of deficiencies in sections 16 and 36, which last was ap proved January 27, 1872." Upon appeal, you, by your decision of February 24, 1890, affirmed that judgment, and he appeals therefrom, assigning the following grounds of error:

1st. In finding said land was legally held as indemnity school land. 2d. In finding that said alleged selection withdraws said land from homestead entry.

3d. In not finding that said selection is in excess of the legal basis, and is void.

4th. In not finding that the State of Washington is not entitled to the number of acres selected in said township.

5th. In not finding the act of February 22, 1889, repealed all previ ous acts authorizing the selection of indemnity school lauds in the State or Territory of Washington, and canceled and annulled all selections made previous to said date.

6th. In not finding that said State is only entitled to selections of indemnity school lands in compliance with the provisions of said act of February 22, 1889.

7th. In not finding that said selection was not made in compliance with said act of February 22, 1889.

8th. In not finding that said act of February 22, 1889, limits the amount of indemnity school lands to which the State of Washington is entitled, and said selection is in excess of the limit of indemnity school lands allowed said State in said township.

9th. In not finding that said tract is not included in the grant of school lands made to said State of Washington by the said act of February 22, 1889.

10th. In not finding that the indemnity selection was not properly made in that the act of February 26, 1859, adopting the act of May 20, 1826, requires that the selections to be legal should be made by the Secretary of the Treasury.

It is unnecessary to deal with the voluminous assignment of errors seriatim. The determination of the question as to whether the land was legally reserved from settlement and entry at the date of the homestead application settles the issues.

The record discloses the facts, which are undisputed. The questions to be determined are, therefore, purely legal.

It appears that the county commissioners of King county, on February 8, 1870, appointed P. H. Lewis to select school indemnity land for the county.

On May 24, of that year, the agent filed in the local office list No. 2, embracing selections to compensate for deficiencies in nine townships, by reasons of portions of sections 16 and 36 being under water.

Township 25 N., range 4 E., is covered in part by Lake Washington, Union Lake, Green Lake and Elliott's Bay. The public survey, ap

proved in 1863, shows the township to contain 13,504.32 acres. Sections 16 and 36 of that township have respectively 341.76 and 83.25 acres in place, making a total of 425.01 acres of school land. The township containing more than one-half and less than three-fourths of a nominal township, would, under section 2276 of the Revised Statutes, be entitled to three-fourths of a section, or 480 acres. But in cases where two sections of land are granted for school purposes (and that number has been so reserved ever since the territorial government of Oregon was established, August 14, 1848,) the Department has decided (O'Donald v. State of California, 6 L. D., 696,) that twice the amount specified in said section will be allowed for deficiencies in fractional townships.

It follows, therefore, that if the territory of Washington was authorized to select school indemnity lands by reason of the 16th or 36th sections being "covered with water" (and that question I will hereafter consider), the area of school land due on account of T. 25, R. 4 being thus fractional, is not 480 but 960 acres. The number of acres in place

in said township, as above seen, is 425.01. To make up this deficiency would require 531.99 acres, and since only 520 acres were selected, no complaint can be properly urged on the score of excess in the selection.

Appellant insists that the act of February 26, 1859 (11 Stat., 385), adopting the act of May 20, 1826 (4 Stat., 179), requires that the selection to be legal or authorized must be made by the Secretary of the Treasury, and that "the selection made by any other officer or person than the particular one required by law would be void and of no effect." It has never been held that the personal intervention of the Secretary is necessary in making these selections; besides, the act of March 2, 1853 (10 Stat., 172), establishing the territorial government of Wash. ington, in its 20th section expressly authorizes the county commissioners to locate indemnity school lands.

The selections were in fact made by an agent, who, as above seen, was duly authorized; and the selections, if not approved at the time, were for nearly twenty years acquiesced in.

The method of selection by a duly authorized agent is not only a very feasible and convenient one, but it is the one usually practiced, and its validity is recognized by the Department. (Hulda Smith, 11 L. D., 382.)

It is insisted that the Territory had no authority to make the selec tions upon the basis employed-i. e., the presence of water upon the granted sections (16 and 36). Also that, if the selections were legally made while the territorial condition existed, the act of February 22, 1889 (25 Stat., 676), admitting the State in the Union, made no provi sion for the selection of lieu lands by reason of such basis, and that the 17th and 25th sections of that act, properly construed, repealed section 2275 of the Revised Statutes, in so far as that section provides for indemnity" where sections 16 or 36 are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever."

As to the right of Washington territory to select indemnity school land under the provisions contained in the act of February 26, 1859 (11 Stat., 385-section 2275 R. S.), upon the basis of the granted sec tions being fractional in quantity, or where one or both are wanting by reason of any "natural cause," but little need be said. The act of 1859 (supra) is a general provision, applicable alike to all the states and territories, and the Department has uniformly held, so far as I am advised, that authority was therein conferred for the selection of indemnity lands to cover deficiencies caused by fractional school sections. John W. Bailey et al., 5 L. D., 216; L. H. Wheeler, 11 L. D., 381.

By the act of March 2, 1853 (supra), establishing the territorial government of Washington, Congress "reserved, for the purpose of being ap plied to the common schools of the Territory," sections 16 and 36, and in all cases where said sections "or either or any of them " shall be occupied prior to the survey, the county commissioners, in the counties where the lands were situated, were authorized to locate other lands to an equal amount in lieu of the sections so occupied.

By the act of 1859 (supra), being a general provision, additional bases were designated from which indemnity school selections were authorized to be made, so that, subsequent to the act of 1859, selec tions for the granted sections were not confined to those parts of the school sections which were "occupied prior to survey," but, in addition thereto, selections were authorized where the granted sections" are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever."

The reservation of these lands for school purposes in the several territories, while not being a grant in praesenti, had the same power and effect as school grant to a state, so far as it affects the reservation of the land. Thomas F. Talbot, 8 L. D., 495.

I do not think it was intended by the act of February 22, 1889 (supra), to repeal or annul the provisions then made for reserving the lands for school purposes. Levi Jerome et al., 12 L. D., 165.

On a careful examination of the 17th section of that act, I am unable to discover any conflict between its provisions and those contained in the last clause of section 2275 of the Revised Statutes.

Moreover, the act of February 28, 1891 (26 Stat., 796), amending that section and section 2276, and incorporating anew the same provisions respecting indemnity school lands as were contained in the original statute, places it beyond question that the State has the right to its indemnity upon the basis herein employed. See Instructions, April 22, 1891, 12 L. D., 400.

The land having been legally reserved from settlement and entry was not subject to the homestead application of Sharpstein, which was properly rejected.

The decision appealed from is accordingly affirmed.