To show that settlement he asked for the hearing, which being ordered by the local officers, thus became virtually a contest to secure the cancellation of the entry of Miss Unger. Graves v. Keith, 3 L. D., 309. In this contest, the register and receiver, the Commissioner of the General Land Office, and this Department all decided that Demmer never made any settlement upon the tract, acquired no rights whatever under his pre-emption declaratory statement, which was ordered to be canceled, and his homestead application, based upon the alleged settlement and prior right, was rejected, and "the case closed as to the cou test."

After the contest was thus closed adversely to the claims and pretensions of Demmer, you advised him to appeal again to this Department to be permitted to make homestead entry of the tract, now that the right thereto had been relinquished by Miss Unger. He did so appeal; the Department entertained that appeal, and treated his application to make homestead entry as "an original transaction:" "his rights" under which, it is expressly declared, "will commence from date of his actual settlement upon said land." As it had been decided that he had, prior thereto, made no settlement upon the tract, it is obvious that the right accorded him was to take effect in futuro, and not because of anything done by him in the past. Therefore, the contention that his former application was treated, or must now be treated, as a pending application which reserved the land as against all subsequent applicants, is made untenable by the plain language used in the departmental decision.

At the time the decision of March 3, 1890, was made, the Department did not know that Hertzog made entry of the tract two years and a half before. The fact was not mentioned anywhere by the local officers or by you in any of the papers sent here in connection with the case, and was only incidentally referred to in one of the arguments of counsel. Such an important record fact should have been officially and formally communicated to this Department, when the relinquishment was transmitted. No evidence of so important a fact, as the existence of an intervening claim, being here, it was said in the decision that no reason was seen why Demmer "as the first legal applicant " should not be allowed to make entry.

It is obvious that in this respect the former decision of this Department was rendered upon an incomplete record, and therefore is not to be regarded as res judicata, even if there were not other reasons for excepting it from that rule. Maggie Laird, 13 L. D., 502.

The defect in the record being supplied, the case will now be decided upon the facts disclosed.

Upon the relinquishment of Miss Unger being filed at the local office, the land covered by her claim became ipso facto open to settlement and entry. Act of May 14, 1880, 21 Stat., 140. Being thus open to entry, that of Hertzog, as the first legal applicant, was properly received and

recorded.

No. 53 of the Rules and Practice does not apply to such a case, because it is to that extent in conflict with the act of Congress. But because of the pending appeal of Demmer that entry was made. subject to any rights he might be adjudged to have in the premises. The Department having determined that he had no prior rights to Unger, he certainly acquired none as against Hertzog, by his first homestead application, which was held to have been properly rejected. See cases of Goodale v. Olney, on review, 13 L. D., 498, and Maggie Laird, supra.

Entertaining these views, the departmental decision of March 5, 1890, is modified, in accordance therewith, your decision holding Hertzog's entry for cancellation is reversed, and that entry will remain intact.

CONFLICTING CLAIMS-HOMESTEAD AND PRE-EMPTION.

BAXTER v. CRILLY (ON REVIEW).

Where the right to file a pre-emption declaratory statement is accorded as against a prior homestead entry, such action does not require the cancellation of said entry, but it may remain of record subject to the right of the pre emptor. Secretary Noble to the Commissioner of the General Land Office, November 24, 1891.

I have considered the application by Crilly, for a review of departmental decision of June 24, 1891 (12 L. D., 684), in the case of Alfred R. Baxter v. Henry Crilly, involving the NE. † of Sec. 20, T. 25 N., R. 47 W., Chadron, Nebraska.

The first ground of error is

In holding that the register in rejecting the application to file the pre-emption declaratory statement, did not advise the applicant of his rights in the premises as required by rule 66 of the Rules of Practice, and that the contestant's said claim was not forfeited by his failure to prosecute the same within the period prescribed by the statute, although an adverse claim to the land had been initiated.

This appears to be a technical objection without practical force.

The facts are that Baxter on July 5, 1886, forwarded to the local officers his application to file a declaratory statement. This was returned to him on July 7, 1886, by the register with the statement that the land in question was covered by the homestead entry of Crilly, and that under the ruling of the Land Department then in force, local officers were not permitted to enter filings over homesteads by virtue of alleged prior settlement, but that a hearing might be had and the question of prior and superior right determined. Baxter did not file his affidavit asking for a hearing until December 22, 1886. It can not be held that this delay in the hearing operated as a forfeiture of his right, and as a hearing was the only remedy he was told that he possessed, his failure to appeal within the time prescribed by the rules of practice, can not be held to operate against him.

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The third and fourth specifications of error are, in effect, that the decision is not in accordance with the evidence; but it is not specified wherein the error exists, and it is a well-established principle that a general allegation of error is not sufficient ground upon which to base a review.

The second ground of error is—

While properly deciding that the contestant could not maintain his claim of priority of right without showing his qualifications as a pre-emptor at the date he initiated his claim, and that he failed to make such showing at the trial, it was an error to remand the case with directions to allow the contestant to come in and establish his qualifications by ex parte affidavits after he had utterly failed to prove these essential facts at the hearing.

The decision in question closed as follows:

I therefore remand the case, with directions that you require Baxter to file supplemental proof, duly corroborated, that he was a qualified pre-emptor at date of his settlement on the land. You will allow him thirty days from date of notice of this decision to comply with this requirement. In the meantime Crilly's entry will remain suspended.

There is nothing in this record that was not before the Department in the original case, and the Department then thought that Baxter should be given an opportunity to submit evidence as to his legal qualifications as a pre-emptor. It was not contemplated, however, that this evidence should be furnished ex parte, although the language justified that inference, but that it should be furnished with notice to the oppos. ing claimant, who, of course, should have the opportunity to rebut the

same.

As Baxter's application is to file a declaratory statement only, such action on his part will not necessitate a cancellation of Crilly's homestead entry, but the same should be allowed to remain intact, subject to the right of Baxter to make final entry for the land, upon showing compliance with the law. The application for review is denied, further than is indicated by the above explanation and modification.

FRAUDULENT ENTRY-NOTICE-HEIRS OF PRE-EMPTOR.

CASSADY'S HEIRS v. LOGSDON.

An entry can not be allowed to stand of record where it is procured through fraud and misrepresentation as against the heirs of a deceased adverse claimant. Notice of a decision to the attorney of record is notice to the party he represents, but not to the heirs of such party.

The heirs of a deceased pre-emptor are entitled to a reasonable period within which to take action as against an adverse claim.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, November 24, 1891.

The land involved in this appeal is the SW. 1 of the SE. of Sec. 11, T. 10 N., R. 37 E., Walla Walla, Washington, land district.

The record shows that William Cassady made application to file preemption declaratory statement for said tract March 3, 1885, alleging settlement November 6, 1883. As nearly as can be ascertained from the record, it appears that Logsdon also made application to file a preemption declaratory statement on said land, but presumably at a later date. A hearing was had before the local officers to determine which of these two claimants had the superior right to file on the land in controversy and the local officers, on or about the 21st of September, 1886, by a joint decision decided in favor of Cassady, whereupon Logsdon appealed to your office, and on October 15, 1888, the decision appealed from was affirmed. Notices of your decision were mailed to the attor neys of record of the respective parties immediately on its receipt at the local office. In the meantime, on February 4, 1888, William Cassady died, intestate, leaving Charles Cassady who lived in Clackamas Co., Oregon, John W. Cassady who lived in Pittsburg, Penna., and Martha J. Kenny, who resided at Astoria, Oregon, as his only heirs at law.

On April 22, 1889, Logsdon made additional homestead entry under section five of act of March 2, 1889 (25 Stat., 854), of said tract. The only papers found in the files in connection with this entry are the application and the receivers' final receipt. He also filed in the local office on the same day a relinquishment of his right of appeal from the decision of your office of October 15, 1888. The necessity of this formal waiver of right of appeal is hardly apparent when it is shown by the record that he had notice of the decision by registered letter of November 10, 1888, and his attorneys of record acknowledged receipt of service of the same December 17, 1888.

It is shown by the evidence that Logsdon made an application for a homestead entry under section 2289 (Revised Statutes, 419), for the tract on December 16, 1888, when he filed an affidavit announcing the death of Wm. Cassady, and an affidavit by two witnesses corroborative of this fact and they also swear to the best of their knowledge and belief that Cassady left no heirs. This application was evidently abandoned and he made additional homestead entry as above stated. On the 5th day of July, 1889, Charles W. Cassady filed an affidavit in the local office, alleging that he, and the others mentioned above were the heirs at law of the said Wm. Cassady; that Wm. Cassady had resided upon said land since November, 1883, was in possession of the same at the time of his death, and that the same was then in contest; that the contest was decided in favor of the deceased and Logsdon had not appealed from the decision; that Logsdon had filed on the land in fraud of the rights of the heirs; that the affidavits of the persons averring that Wm. Cassady left no heirs was known to the witnesses and Logsdon to be false at the time; that the entry of Logsdon was void, unlawful and a fraud, and praying that his entry may be canceled and the petitioner be allowed to make final proof for the heirs of Wm. Cassady.

By your direction, on September 11, 1890, hearing was had before the local officers, and on the 25th day of October, 1889, they jointly held that the entry of Logsdon should stand. The heirs thereupon appealed, and on June 30, 1890, you reversed their judgment and held Logsdon's homestead entry for cancellation.

He appealed from this judgment and claims that you erred in holding that the case of Cassady v. Logsdon had not been fully closed at the time Logsdon entered the land; in holding that the heirs had not lost and forfeited all right by neglect to appear and claim the land; in holding that the heirs had not been notified of the decision in the former case; in holding Logsdon had any knowledge of the existence of heirs of Wm. Cassady at the time he entered the land; in holding Saunders the notary was known to Logsdon to have been Wm. Cassady's attorney; in holding that Logsdon knew that Saunders had any knowl edge of the existence of heirs of Wm. Cassady, and in holding that Logsdon had not acted in good faith or that he had any reason to believe that there were any heirs of Cassady, until long after he had made his entry.

It appears that Logsdon was a settler on this land in 1883, when the same was claimed by the Northern Pacific Railroad Company as being within the indemnity limits of its grant; that on March 17, 1883, he sold to one Hardman all his rights to whatever improvements he had thereon for $302.00. The right of the railroad company was rejected and the tract became subject to entry, and on November 5, 1883, Hardman sold and transferred the same to Wm. Cassady who built a house and established his residence thereon and resided there till the day of his death, February 4, 1888. It seems that Logdson afterwards contested the right of Cassady to file on said land, and the contest was decided against him by your decision of October 15, 1888, over eight months after the death of Cassady. He testified that he made application to include the land in his homestead about the 15th or 16th of December, 1888. One L. R. Saunders, the notary who took the affidavit of witnesses to the effect that Wm. Cassady was dead and to the best of their knowledge and belief had left no heirs surviving, was one of the attorneys of record for Wm. Cassady in the first contest, and he swears at this hearing that he received notice from the local officers of the result of the contest, and that he is under the impression that he mailed the same to Charles W. Cassady. A letter written by him to Charles W. Cassady, dated February 28, 1888, is produced in evidence in which he says: "I have been requested to write to you in regard to the affairs of your father, Wm. Cassady, deceased," and in this letter he speaks of the contest over the land; of an incumbrance there was on it, and advised him "as I (he) attended to all your father's business during his lifetime" to accept a proposition made by the creditor, assuring him it was all the land was worth. This witness was asked if he did not know when the witnesses were swearing that Cas