made and the receiver's receipt issued on March 11, 1886. The Puget Mill Company have held that receipt and possession of the tract ever since that date.

On June 14, 1890, your office finally passed on the appeal of the company from your office decision of December 18, 1876, and held that the purchase of the tract by the company, under the act of June 15, 1880, operated as an abandonment of its appeal, citing case of Alonzo Swink (7 L. D., 342). The original entry was canceled, and the cash entry of said company was also held for cancellatlon, citing as authority therefor the case of J. S. Cone (7 L. D., 94), and the case of the Puget Mill Company (7 L. D., 301).

On March 25, 1891, a motion was filed in your office by said company, asking that your office decision be reconsidered, "on the ground that the entry seems to be confirmed by the act of March 3, 1891." This motion was denied on May 19, 1891, and the company appealed to this Department.

It is shown that the cash entry in question was made and a receiver's receipt issued on March 11, 1886. More than two years therefore elapsed before any action was taken by the government in any way questioning the validity of the entry. In fact, no action was taken until June 14, 1890, when said entry was held for cancellation.

More than four months thereafter, to wit: on October 17, 1890, Charles Shaeffer offered to file in the local land office at Seattle, Washington, his pre-emption declaratory statement for the E. of the NW. of Sec. 18, T. 26 N., R. 7 E., and lots 1 and 2. Parts of the above described tracts are included in the Puget Mill Company's entry in the case at bar, and the residue is included in cash entry No. 9716 made by said company. His application was rejected by the register and receiver, because of conflict with the entries of said company. On November 3, he appealed from said rejection to your office, where on November 29, 1890, the ruling of the local land office in rejecting said application was affirmed. Shaeffer appealed from the ruling of your office, and the appeal is now pending in this Department.

It is a well settled principle that lands embraced in an entry of record are not subject to further disposition, and that an application to enter the same confers no rights upon the applicant.

The validity of the entry of record having been questioned, and the matter being before this Department on appeal for an order holding the same for cancellation, no rights could be acquired by appealing from the rejection of an application to enter land covered by said entry and urging its invalidity. Patton v. Kelley, 11 L. D., 469; Cappelli v. Walsh, 12 L. D., 334.

Your action rejecting Shaeffer's applications is therefore approved. This leaves the case in all respects similar to that considered in departmental decision of August 13, 1891 (13 L. D., 118), involving other land purchased by the Puget Mill Company, in which it was held that

the entry is confirmed under the terms of the proviso to section 7 of the act of March 3, 1891 (26 Stat., 1095), and that patent should issue to the company.

Your decision is therefore reversed, and you are directed to issue patent upon the entry.

CONFIRMATION-SECTION 7, ACT OF MARCH 3, 1891.

GEORGE HAGUE ET AL.

In the enactment of section 7, act of March 3, 1891, Congress contemplated existing entries, and an entry that is finally canceled prior to the passage of said act is not within the confirmatory operation of said section.

Acting Secretary Chandler to the Commissioner of the General Land Office, October 8, 1891.

On March 21, 1883, George Hague made a pre-emption cash entry for the NW. Sec. 12., T. 133 N., R. 60 W., Fargo, North Dakota, and on August 29, 1889, it was canceled on the ground of fraud on the part of said entryman.

After the final entry was made by Hague, he borrowed from the Traveler's Insurance Company, the sum of five hundred dollars ($500.00), and gave as security therefor a mortgage on the tract embraced in his entry.

On April 3, 1891, said mortgagee applied for the re-instatement of said entry and confirmation thereof, under section 7 of the act of March 3, 1891 (26 Stat., 1095).

On June 6, 1891, the Department considering this application fully, denied the same and held that inasmuch as the cancellation of the entry of Hague had become final before the passage of the act of March 3, 1891, supra, said entry could not be confirmed under the seventh section thereof.

I am now in receipt of a motion filed by the attorneys for the Traveler's Insurance Company, asking that the departmental decision of June 6th be reviewed and set aside and that the entry of Hague be re-instated and passed to patent under the act cited.

The motion is based upon the following assigned error.

Your honor erred in holding that the cash entry involved, was, by reason of its being canceled, by decision of the Department, prior to date of the act of March 3, 1891, without the confirmatory provisions of section 7 of said act, and in thereupon denying the application for patent thereunder..

In the argument of counsel, it is contended that the language of the part of section 7, sought to be applied to this case should be construed to mean that Congress intended to cover past transactions and that wherever an entry of the kind enumerated in said seventh section, in which final proof and payment may have been made and certificate issued and where the other conditions named in said section exist, such an

entry is confirmed without reference to whether it had been canceled before the confirmatory act was passed or not. An attempt is made to fortify this contention by stating that Congress had in view when the section was passed, the protection of innocent purchasers and incumbrance rs alone, and it is argued that one who has loaned his money in good faith, relying on the final receipt, should not be cut off from this protection for the reason that because of the acts of the entryman, the entry has been canceled, when protection is given to the same kind of a mortgagee, who by reason of aggressive opposition or some other cause may have prevented or put off, the cancellation of an entry until after March 3, 1891, when the act in question was approved.

Prior to the passage of the act in question, there was no such thing as an innocent purchaser before patent and the Traveler's Insurance Company when it loaned this money, loaned it only on the strength of the title that Hague had, and it must have known, for all men are presumed to know the law, that his title was subject to confirmation or rejection at the hands of your office or this Department, and that his title must depend on whether or not his acts in securing the final receipt were bona fide and whether or not he had complied with the law under which the entry was made.

The system adopted for the disposal of the public lands is administered by the register and receiver of the local land office, the Commissioner of the General Land Office, and the Secretary of the Interior, and a case is only partly adjudicated by the register and receiver, and one who loaned money upon or purchased land of an entryman, is not an innocent purchaser, but a conditional incumbrancer or purchaser. Steele v. Smelting Co. (106 U. S., 447).

United States v. Schurz (102 U. S., 378).
Carroll v. Safford (3 Howard, 441).
Smith v. Custer et al. (8 L. D., 269).

United States v. Johnson (5 L. D., 442).

On authority of the decisions of the Department and of the supreme court, it was always held that the doctrine of caveat emptor applied with all its rigor to purchases made prior to patent, such purchases can give no rights not earned by the entryman, by complying with the law in good faith.

That part of section 7, which is relied upon to allow the confirmation of the entry in question, is as follows:

and all entries made under the pre-emption, homestead, desert-land, or timberculture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or incumbrancers, for a valuable consideration, shall unless upon an investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the Land Department of such sale or incumbrance.

It will be noticed that all pre-emption, homestead, desert-land and timber culture entries, in which final proof and payment have been made, etc., and where certain other conditions exist, are confirmed.

In the passage of this section, Congress evidenty intended to deal with existing entries. It has from time to time made appropriations for the purpose of hiring special and other agents for the Land Depart ment, in order that investigations might be made to ascertain whether certain entries were valid or not.

In view of all this, it could not, it seems to me, have meant by this act to resurrect some of these same entries, found on the investigations provided for by means of Congressional appropriations to have been fraudulent, and for that reason finally canceled, in order that they might pass to patent. Besides when an entry is canceled, other and valid claims are often asserted and new rights are acquired.

If an entry that was canceled three months or a year before the pas sage of the act of March 3, 1891, is confirmed, an entry canceled three or ten years before the passage of the act would also be confirmed, and this too without regard to present claims for the land.

It is apparent that Congress did not mean to raise up and confirm entries which have been canceled, and the rules of construction will not allow any such interpretation to be placed on the section in ques tion.

Said section was intended to confirm certain entries but no where is any statement found in the act indicating an intention to give life to and confirm an entry not in existence at the date of the passage of the act cited.

James Ross, 12 L. D., 446;

R. M. Chrisinger, id., 610

Niels C. E. Jorgenson, 13 L. D., 33.

The motion for review in this case is accordingly denied.

PRACTICE-CONTINUANCE-DEFAULT.

JOHNSON v. PRICE.

Where a case is continued to a day certain, in compliance with the terms of a stipu lation, and the contestant fails to appear on the day thus fixed for the hearing, an order dismissing the contest may be properly made.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, October 8, 1891.

On September 7, 1886, Isaac C. Price made homestead entry, No. 10900, for the SE‡. Sec. 12. Tp. 32 S., R. 37., at the Garden City land district, Kansas.

On January 3d, 1889, Silas B. Johnson filed a contest against said

entry. A hearing was ordered by the local office for November 22, 1889, and the parties were duly notified. On October 30, 1889, the following stipulation was filed.

Silas W. Johnson, Plaintiff,

V.

Isaac C. Price, Defendant.

Before the Register and Receiver, Land Office, Garden City, Kan.

Stipulation.

It is hereby agreed and stipulated that the above case be continued thirty days from Nov. 2d 1889.

SILAS W. JOHNSON, By S. N. WOOD, his atty. ISAAC C. PRICE.

The hearing was thereupon continued to December 2, 1889, and S. N. Wood was "fully aware that his stipulation for continuance was granted," as appears by the register's letter of January 25, 1890, to your office. On November 22, 1889, G. L. Miller, the other attorney of said Johnson, appeared at the local office and learned that the case had been continued

On December 2, 1889, the plaintiff made default of appearance, and the case was dismissed. An appeal was duly taken to your office, and by your letter of March 12, 1890, the decision of the local office was affirmed. An appeal from your judgment now brings the case before

me.

The contention of the plaintiff is that your office erred in sustaining said dismissal, because

said stipulation entitled the plaintiff to thirty days continuance from November 22 1889, to-wit, to December 22, 1889, in place of thirty days from November 2, 1889, being the day said stipulation reached the local office by mail.

The stipulation is not dated, but it reached the local office and was filed on October 30, 1889.

The continuance was granted, according to the precise terms of the stipulation, "thirty days from Nov. 2, 1889," and the statement in the assignment of error above cited, that the continuance was granted thirty days from "the day said stipulation reached the land office by mail," is a gross error. Both the attorneys for the plaintiff knew of the date to which the hearing was continued. One of them was a resident. of Garden City. Neither of them saw fit to appear on the day set for the hearing. It was a fair presumption on the part of the local officers that the plaintiff had no ground for his contest, and the disposition made of the case was a just one. No excuse or reason for the plaintiff's default is pretended. The appeal from the local office was based upon technical irregularities. It was held in Smith v. Johnson, (9 L. D. 255), that a party would not be permitted to question the regularity of a continuance procured at his own instance.

The appeal to this Department is based upon an irregularity that does not exist. Both appeals seem frivolous and intended for delay. Your judgment is affirmed.