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LivingSTOY l'8. PAGE.
Cora E. Harper testifies—[formn 4-369), Statement and did not discover samo Sister of Receiver.-A homestead entry by a sis- that she was tweniy-one years of age on until more than ninety days had elapsed
ter of the Receiver is not objectijna olo on 25th August, 1892, and it also appears from time said land came into market," that acconnt alone.
that previous to attaining her majority, to &c. Comu'n. McFARLAND to Register and Reccicer, wit, August 8, 1832, she initiated and kept Settlement on part of Bristol, is shown Mitchell, Dakota, June 21, 1883. (11. C. S.)
up actual residence on the land in ques. from August 3, 1882, also residence anl I have considered the case of James F. tion.
cultivation. Finally, you recommend Livingston, ts. Cynthia B. Page, incolis *. IIouse 12x14 feet, lumber, and well, the application le granted, although ins II. E. No. 20171 made June 16, 1832, and 27 acres broken (crop of 8 acres)" con- apparently the most remarkable for the V. E. 4 of sec. 13, T. 102, R. 63, stitute the improvements as shown; record.” Mitchell series. **value, $275.00."
From the foregoing it appears, that Ilearing ordered by this office February The proot" is still deficient in two in- Siverson is willinz (xub conditione) to re24th last, the complaint alleging illegal stances, riz: It was mude S.ptember 12. lire from the tract in question, so as to al. ity of the entry, because of the intimate 1882, befor: Charles D. Austin, clerk Dis- low Bristol to repair the laches for which and confidential relations existing between trict Court, Ransom county, Dakota, who he is responsible, though perpetrated by claimant and Iliram Barber, Jr. Receiver; neglected tɔ certify to the absence of the his attorney (Davis: also abandonment.
Junge (Act March 3. 1877), and the Reg- I am of the opinion that he should be al. Notice of contest issued March 15th. ister failed to certify as to to the posting lowed to do so, and I find in the case of and parties cited to appear before W. L. of published notice, etc. You will cause Shadduck 18. Jorner, [Copp, Vol. VI, p. Warren, Probate Julge of Davison county, these omissions to be propery supplied. 113] certain principles laid down wbici D. T., April 19, 1883.
This done, the case resolves itself into apply, in part at leasi, to this case. No. The evidence discloses (and it is not a question as to proper title in which tally that part of the decision raterring to denied) that Cynthia B. Page is a sister to issue final certificate and receipt. Of case of Atherton is. Fowler [6 Otto 513.] of the Receiver, but this fact is the only this, I would decide that" Cora E. 11:rper, I have this day, therefore, canceled as allegation in the complaint touching the orphan chill of Reuben S. Harper, de illegal yet without prejudice, llomestead validity of the entry, that is supported boy ceased,” would mect the case.
Entry 11,687, of George Siverson, and you the evidence. This fac', of itself, is not
For it accurately sets forth the basis will note the same on your records with a sufficient to invalidate the entry. Nor upon which patent should issue, and em. reference to this letter C by date. does it appear from the evidence that bodies the fact that Cora E. IIarper, in the claimant is a member of the Receiver's status of a feme sole, is possessed of a
ROACII VS. FLEMMING. family, or that she is an employee of your homestead right in her own person, appar- Abandonment-Rtsidence- Mortgage. The testioffice; therefore, following my decision in ently not yet utilized.
anony fails to shows that the homestead claims the case of Chas. L. Cronk 18. Paul E.
Upon payment of final commissions, and ant has abandoned his claim. Page, Mitchell, D. T. [publishel herein— supplying deficiencies cited above, you COMMISSIONER MCFARLIND, to Rep., and Rec., Editor], the contest is (lismissed. will is sile final certificate and receipt, with
Sacramento, Cal., July 11, 1882. (s. W. S.) it reference thereoa to this letier - C" by
I am in receipt of your letter of May 20, Cona E. II JRPER. date.
1882, transmitting the testimony sub
mittel in ihe case of John Roach is. Geo. Tatent.--In this case the title in which to issue tinal certificate should le * Coia E. Harper,
W. Flemming, involving homestearl entry oi phan child of Reuben S. Ilarper, deceased, Conflict -- Cancellation Without Prejudice. --- In N. W.1, of S. W. Sec. 27, Î'p. 5 N., R. 11
No. 3,312, covering the W. . N. W..and with a right as feme sole to anothier homestead
view of the peculiar facts of another's prior in her own peison.
settlement, the homestead entry in question E. The entry was made June 2, 1881; the COMMISSIONER MCFARLAND to Reg. and Roc., is canceled without prejudice.
coutest alleging abandonment, was inFargo, Dak., June 22, 1883. (1. G. II.) COMMISSIONER MCFARLAND to Reg. und Rec., itiated January 7, 1882, and the hearing
I am in receipt of your letter of Sep- Fargo, Dak., June 28, 1883. (A. G. II.) held before you March 7, 1832. Yon lletember 14, 1882, in which you transmit for I am in receipt of your letter of May cided in favor of the claimant, from which instructions from this Office“ final proof"' 29, 1883, transmitting an application of decision the contestant appeals. offered by Cora E. IIarper, on homesteal George Siverson to be allowed to relin- From the testimony submitted it apentry 9172, made October 13, 1881, V. E. quish, without prejudice, and withi credit pears that there is a small house or cabin 15.0–135—55, by Amanda J. Harcourt, for fee and commissions-already paid- on the land, an orchard of some two acres, guardian of Cora E. llarper, minor orphan his homestead entry 11687, Nov. 2, 1882, and about thirty-live acres of the land enchild of Reulen S. llarper, deceased. -S. W. *5--130–62. Plat was tiled at closell with a wira fence, about ten acres (Sec. 2307 R. S.) district oflice Sept. 4, 1882.
of which were sowed in wheat in DecemFrom evidence submitted, it appears The testimony subunitted, shows: ber, 1881. that this II. E. 9172 was initiated by one That he had inadvertently, (being mis- Mr. Flemming swears that he was reperson and perfecteil by another, though informed,) entered a tract, on which Henry siding on the land at date of entry, barthe claim in esse, remains.
S. Bristol “had settled upon and im- ing built his house in 1879, that he reRecord evidence (from War Depart. proverl, and is still residing on and im- mained on the land from June 2, 1881, inment) shows that Reuben S. Jarper per- proving the same and has, I believe, a til August 27, when he went to Stockton forineal about four years of military ser- better right than I to the land. I further and worked at his unde, retựrning to the rice during the War of the Rebellion. swear that I have not sold, assignel, vor and three times in September, twice in Amanda J. Harcourt, the mother of Cora in any way encumbered the land described October, three days in November, and E. Harper, minor orphan chili, etc., did, in my application," &c.
froin January 1, 1882, he has been on the as guardian, make liomestead entry, seek- The evidence further showeth, in the land once a week. lle swears that he has ing to utilize aforesaid military service of testimony of Clarence W. Davis (attorney never abandoned liis claim nor acquired a her deceased husband aforesaid, in behalf for Bristol) "That during the winter of residence elsewhere; that his household of his child, she (Harcourt), having lost 1882–83, and prior to the expiration of the effects were left in his house and that it is the usus fructus of said military service time allowed settlers upon usurveved his only home; that having no team he by reason of another marriage.
public lands to make their filings aiter hired the plowing and sowing of the wheat She testified in her petition to the Pro- the survey of the same the said llenry S. done. Ilis testimony, as to, residence, is late Court (seeking letters of guardian. Bristol came into deponent's office and in the main corroborated by two witship), that Cora E. Harper was nineteen made D. S. for said tract of land,'' &c. nesses. years of age August 25, 1880.
" That deponent mislaid said Declaratory The contestant and bis tiro titrcsecs
swear that they did not see the claimant the 2d section of the act of June 15, 1880 cancellation without prejudice to her right, on the land between June 2, 1881, and (21 Stat., 237). Whereupon you rendered to make another with credit for fee and January 17, 1882, that the land cultivated the decision in question, holding, under commissions. in Dec., 1881, was done in the interest of authority of my immediate 'predecessor's McComb filed declaratory statement Mrs. Jane 0. Green. None of the con- decisions of March 12, 1881, in the case of April 29, alleging settlement April 19, testant's witnesses have been in the house, Gohrman vs. Ford (8 COPP, 6), that the en- 1878, and Martin made homestead entry on the land, since day of entry.
tryman (Oldemeyer) had the right to pur- January 19, 1882. The hearing was April There were introduced as evidence, two chase at any time prior to the cancellation 7, 1882, upon McComb's application to deeds, one from Flemming to Jane 0. of his entry.
make proof and payment. Green, dated Aug. 19, 1881, quit claiming It is urged, however (inter alia), by The testimony shows that McComb setthe land in question, and one dated Jan- Bykerk’s counsel that the decision cited is tled as alleged, erected a house and outuary 3, 1882, from Mrs. Green reconvey- inapplicable to the case at bar, because in buildings, broke fourteen acres, which ing the land to Flemming. Mr. Flemming that case the defendant had applied to were cultivated in 1879 and 1880, but swears that the first deed was considered purchase before trial, which was never had, from drouth failed to produce crops; and as a mortgage to secure Mrs. Green for whereas in this case Oldemeyer permitted continuously resided on the land until money loaned him, most of which was ex- it to go to trial, and did not apply to pur- September 1, 1881, when (leaving most pended in building the wire fence; that he chase until after the rendition of your ad- of his effects in his house) he left the land paid her money at different times; and verse decision. But it should be observed to labor on a railroad two hundred miles on January 3, 1882, he made final pay. that the decision cited not only holds that distant, for means of support, intending ment and she therefore deeded the land the said acts of May 14th and June 15th, to return October 1st following. His back to him.
1880, are not in pari materia, but it is wife was taken sick shortly after, and reIn this connection I will state that I am very explicit upon the subject of the en- mained under care of a physician until in receipt of a letter from the contestant's tryman's right of purchase, as will be seen February 25, 1882. attorneys, Reddick and Solinsky, dated from the following citation :
He reached the land March 7th to find San Andreas, California, the 19th ultimo, “ If the contest proceeds to its finality, his house destroyed, and Martin in occuenclosing certain affidavits and asking for to wit: the cancellation of the entry, his pation of a house she had erected on the a rehearing, on the ground of a relinquish- preference right of entry is thereby estab- land. The thirty-three months within ment, by Flemming, purporting to have lished. But if through failure to prove which McComb was required to make been executed by the local officers at his allegations, or any of the ordinary in- proof and payment expired January 19, Stockton, and which you failed to take cidents of trial; or if the homestead party 1881, and his failure to prove and pay cognizance of. Admitting the allegations avails himself of the right of purchase of within that time would be conclusive contained in said affidavits to be true, it the tract, as provided by the act of June, against him, except for the act of June 4, · would not affect the case, as the subsequent and thus defeats the cancellation of his en- 1880, which authorizes homestead and preaction of the claimant shows that he has try, I see no reason why the contest emption settlers on the public lands in not abandoned his entry, and I must there should not fail, and the contestant lose his Kansas and Nebraska, west of the sixth fore decline to order a rehearing. right of entry.
principal meridian (where the lands in I concur in your joint opinion holding Under this and other laws relating to question are located), when there was a that abandonment has not been proven. homestead entries, a person may now con- loss or failure of crops from unavoidable Affirmed by Secretary Teller, June 23, 1883. tinue residence on and cultivation of his cause, in the years 1879 or 1880, to leave
land for the time required by law; or he and be absent from their lands until OctBYKERK VS. OLDEMEYER.
may at any time, in the absence of other ober 1, 1881; and during said absence no Contest-Act of June 15, 1880— Purchase.—The rights or claims, purchase the same on adverse rights should attach, but the set
contestee under the act of June 15, 1880, has payment of the government price; and I tlers be allowed to resume and perfect the right to purchase at any time before the cannot think Congress intended this right their settlement as though no such abcancellation of his entry. Notice before con- should be subjected to the delays and sence had occurred; and the time for
test of such intention is not necessary. SECRETARY TELLER to Commissioner Mc Far-stituted for oppressive and fraudulent tended for one year after the expiration
uncertainties of contests oftentimes in- making final proof and payment is exlund, June 23, 1883. I have considered the case of Andrew purposes; but that, whenever such person of the allowed term of absence. Under
tendered to the Government its price for this act McComb's time for proof and Bykerk vs. Gerrit J. Oldemeyer, involving the land, and the rights of no other per- payment did not expire until October 1, homestead entry No. 16,306, of the N. ļof S. E. of Sec. 18, Twp. 7, R. 7 E., Lincoln son are affected thereby, he should be per- 1882, and he offered them
in April premitted to purchase the same." district, Nebraska, on appeal by Bykerk
ceding. He appears to have acted in from your decision of July 15, 1882, in erated by this department, under date of land, and the facts bring him within the
The doctrine thus enunciated was reit- good faith without intent to abandon the favor of Oldeineyer. It appears that the defendant made the
June 2, 1881, in the case of Johnson vs. provisions of this act. I affirm your de
Halvorson (8 COPP, 56). entry June 14, 1878. Bykerk initiated
Your decision is accordingly affirmed. contest against the same January 4, 1881, by filing the usual affidavit alleging aban
TIMBER CULTURE. donment, pursuant to the provisions of
BUELL VS. AYRES ET AL. Section 2297 of the Revised Statutes, and
McCOMB V8. MARTIN. of the 2d section of the act of May 14, Act of June 4, 1880—Good Faith. --The facts in
Contest— Application to Re-enter Land.—Where a
party contesting a timber culture entry failed 1880 (21 Stat., 140). Whereupon citation this case bring it within the act of June 4,
to make a formal written application to reissued the same day summoning the par- 1880, and the pre-emption entry is allowed.
enter the land, but made a verbal application ties to appear at the local office the 10th SECRETARY TELLER to Commissioner McFar- to do so, which was refused by the Regisof February ensuing. Upon the evidence land, May 29, 1883.
ter, the contest was held to be lawfully comtlius adduced the Register and Receiver I have considered the case of William
menced, and the contestant entitled to the dismissed the contest February 22d. Con- D. McComb vs. Eliza J. Martin, involving Revoking Decision.-The General Land Office
preference right to re-enter the land. testant having appealed from such action, the W. } of the N. W. Ļof Sec. 30, Tp. 7, may revoke its decision on its own motion, or you reversed the same April 29, 1882. R. 18, and E, of the N. E. ¢ of Sec. 25, the motion of either party. From this action Oldemeyer appealed July Tp. 7, R. 19 W., Kirwin, Kansas, on ap- ACTING COMM'R HARRISON to Reg. and Rec., 5th ensuing, filing with his appeal an ap- peal by Martin from your decision of Sep- Huron, Dakota, June 6, 1883. plication to purchase the premises under Itember 29, 1882, holding her entry for It appears from the records of this office
that Henry Connalley made timber culture the contest of Mr. Buell reinstated, and no such application was necessary, nor entry No. 1789, July 22, 1879, for the S. the contest of Mr. Ayres dismissed. would be be permitted to file the same, as W. Ž, Sec. 5, T. 110, R. 61, Springfield As it is conceded by both parties that he had a preference right under the law, Series.
the cancellation of Connalley's entry, July for 30 days after the cancellation of the September 29, 1881, Alexander T. Buell 12, 1882, was unauthorized, and as no ap- contested entry. He also made a written entered contest against said entry, at the peal was taken from my action'in so de- application to enter said tract, on the Mitchell office, the land then being in that ciding, it is unnecessary to discuss the day of trial and at two other different district, alleging that Connalley had failed supposed rights of either party under said times, all of which were refused. This to break five acres of said tract, as re- cancellation.
evidence is not successfully contradicted quired by law.
It appears from the evidence taken at in any material particular. Service of notice was had by publica- the trial in November, 1881, that Con One W. B. Ingersoll, attorney for Mr. tion, and November 4, 1881, set for trial nally had in no particular complied with Buell, swears that he made out Buell's of the case, at which time the plaintiff ap- the law, and this he virtually admits by contest affidavit, and that at the time peared and submitted testimony, sustain- filing his relinquishment of the entry dated Buell executed said affidavit he did not ing the allegations made in his complaint. July 10, 1880. But I also find that long then make his application and affidavit to Upon this testimony, the Register and prior to that date Connalley had relin- enter said land. This evidence does not Receiver declared the entry forfeited, and quished his entry, to wit : August 2, 1879, contradict Buell, for Buell says he made defendant duly notified thereof by public the execution of which is attested by Wm. a verbal application to the Register, when cation, and also of his right of appeal. H. Davenport and George Randall. he filed his suit. Ingersoll did not pre
August 12, 1882, a relinquishment of This relinquishment is executed on the tend to say he was present then, nor that defendant's entry was filed in the local back of the duplicate receipt, and only ten Buell did not make such verbal applicaoffice at Mitchell, dated July 10, 1880, and days after date of entry. The relinquish- tion, and if his affidavit has any bearing the entry was thereupon canceled. ment of July 10th is executed upon a sep- on this case at all, it only shows that he
August 16, following, James L. Ayres arate printed sheet, which is pasted on the did not discharge his duty to his client. filed D. S. No. 19170, for the east half of back of the duplicate receipt, thus hiding Buell did all that it was reasonable to said tract, alleging settlement thereon the the first relinquishment from sight, the ex- expect him to do, and had the Register 15th day of the same month.
istence of which was ascertained by soak- permitted him, there is no doubt but that August 16th, of the same year, Alexan- ing the duplicate receipt and second re- he would have filed a written application der T. Buell made timber culture entry of linquishment in water until they came and affidavit for entry of the land, as he the remaining one-half of said tract No. apart.
had paid $300 for the privilege of con9862.
Mr. Ayres in his contest affidavit dated testing this Connalley entry. He, there. August 19th, Nathan E. Reed made January 3, 1883, swears positively that fore, comes fairly within the rule laid timber culture entry 9862, for the tract Connallay has failed to comply with het down by the Supreme Court and this Deembraced in the filing of Jas. L. Ayres. law in any particular, and that this entry partment in the cases of Lytle vs. Arkan.
December 29, 1882, this office canceled is one of a series of entries made by John sas, 9 Howard, 314; 18 Curtis, 159; Morthe filing of Ayres, and the entry of Buell, D. Cameron, which are all notoriously rison vs. Stalnaker, 9 Copp, 85, and on the ground that the same were erro- fraudulent and illegal. It is therefore Schmidt vs. Stilwell, 9 Copp, 172. neously allowed, because Rule 53 of the conceded by both Mr. Buell and Ayres, This latter case I consider decisive of Rules of Practice prohibits the local and the testimony and relinquishments, the one at bar. The fact that Ayres has officers from making any disposition of establish the fact that Connalley's entry made about $1000 worth of improvethe land embraced in a contest suit, dur- was fraudulent and illegal, and that he did ments on the land since August, 1882, ing the pendency of such suit.
not comply with the law. His entry is cannot prejudice Buell's rights. Ayres, Timber culture entry No. 9862, by Na- accordingly canceled, and you will so note who is a land attorney, was bound by the than E. Reed, for E. J of S. W. ), Sec. 5, upon the records of your office.
record to take notice of Buell's contest, T. 110, R. 61, is hereby canceled for the
I now come to consider the main ques. and his familiarily with the land law and reason just stated, and also for conflict tion in this case as between Mr. Buell and practice must have informed him that the with the reinstated entry of Connalley. Mr. Ayres, viz.: Has Mr. Buell complied cancellation of Connalley's entry, July 12, (Note the cancellation on your records, with the law in the initiation of his contest 1882, on the relinquishment filed, was irand advise the party in interest accord- and has he the preference right of entry regular and illegal, and that he could not ingly.) under and by virtue thereof?
acquire any settlement right on said land No appeal was taken by either Ayres or But before proceeding to dispose of this while Buell's contest was pending, nor Buell from my action in canceling their question I will state that Mr. Ayres de- until Connalley's entry had been properly entries. In fact, the attorneys for both nies the right of this office to revoke its canceled. parties, in their oral argument of this decision of December 29, 1882, or to dis Nor can the substantial rights of Buell case on the 1st inst., admitted the correct- miss his contest. In reply it is only nec- be defeated by the surprise of a contest ness of my action in the premises. I have essary to state that Mr. Ayres' contest illegally and erroneously allowed, such as therefore only to consider the case in its was subject to the rights of Mr. Buell was Ayres. Schneider vs. Bradley, 9 entirety as now presented. December under the Rules of Practice applicable to Copp, 64; Smith vs. Oakes, ib. 233; Love 29th, 1882, I directed the dismissal of the motions for rehearings, reviews and ap- vs. French-Huron, April 5, 1883. contested case of Mr. Buell, for the reason peals. This office has the right to revoke Notify Mr. Buell that he will be al. that it did not appear from the record of its decision on its own motion or at the lowed thirty days in which to enter the land. the case that he applied to enter the tract instance of either party to the contest, embraced in the contested entry, at date upon proper showing; therefore my de
R. H. TRUSDLE. of the initiation of his suit.
cision of March 16 last was proper and January 6, 1883, the Register of your correct; 1 Copp, 1882, 222; 9 Copp, 64
Contest- Preferred Right-Pre-emption Filing.
The timber culture entry of Trusdle is aloffice permitted James L. Ayres to initiate 233.
lowed, subject to the pre-emption filing of contest against the entry of Connalley. It appears from the evidence of con Watson.
Under date of January 30th last, you testant Buell, Judd Willis, John T. Mc- SECRETARY TELLER to Commissioner Mc Fartransmitted to this office the application Whorter, and the certificate of Wm. Let land, May 28, 1883. of Mr. Buell for a rehearing and review cher, Register of the Mitchell Office, that I have considered the appeal of R. H. of my decision of December 29th last, when Mr. Buell initiated his contest, he Trusdle from your decision of September dismissing his contest, and on March 16th applied to said Letcher, verbally, to enter 19, 1881, rejecting his application to interfollowing, my said decision was revoked,' said land, and was informed by him that plead in the case of Jonathan C. Hale vs.
Lafayette Cook, involving the latter's of Watson whose right will depend This construction, since that decision, timber culture entry made October 3, upon his actual settlement, October 3, has been followed by this Department. 1878, upon the W. of the N. E.), and 1881, which was prior to Trusdle's (Ewing vs. Ricard. 9 Copp L. 0.,174). I the E. } of the N. W. & of Sec. 27, Tp. 5, application of October 10th, and will therefore reverse your decision, and direct R. 16, Kirwin, Kansas, and to contest said be determined by his proofs at the that the defendant's entry be allowed to entry. proper time.
stand. IIale initiated his contest against Cook March 2, 1881, notice of which was return
FITCII VS. CLARK. able June 2d. Trusdle filed his applica.
ANDREW KORBE. tion May 13th, and on May 16th Hale Default Cured-Good Faith.—If a timber cul
Relinquishment Purchaser — Non-payment.
ture claimant is not in default as to the whole filed an amended affidavit to the effect
The purchaser of the relinquishment of pubamount of breaking required at the time affi-. that his contest was in behalf and for the
lic land entry gains no rights against the davit of contest is filed, the entry should not
United States from the mere fact of such puruse of his daughter, Albie A. IIale. bo declared forfeited.
chase, and the question of duplicate sales or Trusdle's application was properly re- SECRETARY TELLER to Commissioner Dc Far- of the payment or non-payment of the purjected because, not applying to enter the land, June 13, 1883.
chase money, has no legal bearing in the dctract he had no right to contest Cook's I have considered the case of W. R.
termination of a case. entry. (Bundy vs. Livingston, Copp, Fitch vs. Hugh G. Clark, involving tim- COMMISSIONER MCFARLAND to Reg. and Rec. December, 1832.)
ber-culture entry No. 892, covering the N. Wa Keeney, Kansas, June 30, 1883. (J. W.L.) The contest of IIale against Cook was W. 1-4 of Sec. 20, Tp. 20, R. 11 E., Ne- I have considered the appeal of Andrew also unauthorized because he did not ap- ligh, Nebraska, on appeal from your de- Korbe from your decision of May 5, 1881, ply to enter the tract when initiating the cision of July 5, 1882, adjudging the en- rejecting his application to contest T. c. contest, and also because he had cr. try forfeited.
entry No. 91 made by Samuel P. Kipple, hausted his right of further entries under The entry was made May 17, 1880. The July 14, 1876, for the N. W. Sec. 32, 14 both the homestead and timber culture aflidavit of contest was filed January 14, S. 17 W. laws which were then intact; and it would 1892, and alleged that “H. G. Clark It appears that Kipple died May 28, be a vain proceeding to permit a contest failed to break, or cause to be broken, 1879, and that on June 28, 1880, his with it view to an entry which could not five acres of the tract claimed during widow, as administratrix, executed a rebe allowed.
the first year after the entry thereof, linquishment to the United States of said On June 21, 1881, Byron C. Davis filed viz., lietween the 17th day of May, entry before John G. Tracy, probato Cook's relinquishment of his right to the 1880, and the 18th day of May, judge of Ellis county, Kansas. tract, and it thereliy became again public 1881."
On November 16, 1880, Edwin F. Wood land, subject to the first legal applicant ; The proofs show that the land is low presented at your office what purported and Davis applied on the same day to and wet in character, and was overflowed to be a copy of said relinquishment certianter it under the timler culture law, but in the spring and early summer of the fied to by the probate judge, and he apdid not tender the fees therefor as required years 1880 and 1881; that the defendant plied at the same time to enter the land Is the act of June 14, 1878. IIc conse- made arrangement for breaking five acres under the timber culture laws. quiently acquired no right.
during the spring of 1880, but that after You rejected the relinquishment and On Derolier 10, 1881, Trusdle applied May 23d, there was no time during what application on the ground that the preto enter the tract in due forin under the is known as the breaking season (which is bate judge did not state that the original timler culture law, tendering the fees stated to be from about June first to Au- relinquishment was on file in his office, there for, Lut his application was rejected gust first) in which it could have been and because il copy of a relinquishment is under your decision of September 19. done, owing to the wet condition of the not suflicient to cause a cancellation of 1881, because the thirty days preference land. It appears, however, that the work the entry. right, within which you allowed Ilale tu might have been done in September or Wood appealed from this decision, alenter it, had not expired. Even had lale October. In 1881, the ground was too leging that he purchased the relinquishhad such preference right, Trusdle's ap- wet for breaking until about August the ment from Mrs. Kipple, the relinquishiplication should have been allowed sui- first, when the defendant caused to be ment and purchase money ($50), being ject thereto (Shanley is. Moran, March broken what was supposed to be ten acres, deposited with the probate judge; that 12, 1883, 10 Copp, 93). But Hale having but upon actual measurement, it proves to the relinquishment and his application to no preference or other right (for the be nine and one half acres. The good enter the land were in the first instance reason stated), and there being no valid faith of the defendant is shown, and at the sent to the local land oflice by the probate claim to the tract, Trusdle's application time of filing the affidavit of contest, the judge, but were returned to him for corshoukl have been allowed.
amount of land required by law had been rection, and that Mrs. Kipple subsequently Afterwards, November 9th, Lafayette broken, although five acres thereof were obtained possession of the relinquishment Wands (filing the relinquishments of Ilale not broken within the first year. There and sold the same to another party. The and Abbie A. IIale) applied to enter the was still left to the defendant the remain-probate judge made aftidavit to the same tract under the timber culture law, which der of the second year within which he effect. His receipt, dated June 23, 1880, application was rejected, because of Trus- could break the half acre found by meas. for the $50 paid by Wood was also transdle's rejected application of October 10ih, urement to be short. (Cornell vs. Chilton, mitted. An aflidavit from Mrs. Kipple ripon which his appeal vas pending, and 9 Copp, 174).
dated September 18, 1980, accompanied also because of his subsequent application At the time of the contest and of your the papers in which she stated that the of Norember 9th, made prior to Wands' decision, it was supposed that the statute Receiver's duplicate receipt for entry No. application on the same day; and on absolutely required that five acres should 91 had been delivered to one Charles Mil. November 19th J. J. Watson applied to be broken during the first year; but this ler, and had been lost or destroyed. file a declaratory statement for the tract, Department held, in Galloway vs. Winston, By my letter of February 14, 1881, your alleging settlement October 3, 1881, (9 Copp L. O., 98,) that if the entryman action in rejecting the certified copy of which application was rejected because was not in default as to the whole amount the relinquishment and Wood's applicaof the pendling appeals from rejection required to be broken at the time of filing tion to enter the land, was so far modified! of both Trustle's and Wands' appli- the aflidavit of contest, the forfeiture of as to permit him to furnish furiher evication,
the entry would not be declared; in dence - to settle the matter of beirship.” I modify your decision and direct the other words, that if the default had Supplemental testimony was forwarded, allowance of Trusdle's application of been cured before any other rights had being the affidavits of Mrs. Kipple and October 10, 1881, and also the filing 'intervened, entry would the be preserved. 'Rasmus Rassmusson, respectively, setting forth the names and ages of the minor heirs Kipple's entry having been canceled, the land subject to proper entry by the of Samuel P. Kipple, deceased. An order the land becane subject to entry, and first legal applicant after the receipt of of sale from the probate court, dated July Wood was permitted to enter it. His this letter. 9, 1880, authorizing the disposal of the entry is now intact upon the records, but Note the cancellation on your records, interest of the estate of Samuel P. Kipple is liable to contest for any failure of his and inform this office thereof as heretoin T. C. entry No. 91, was also filed by own to comply with the law.
fore instructed in such cases. Mr. Wood.
Your action is affirmed, and Korbe's On May 17, 1881, the entry was can- appeal is dismissed.
TIMBER DEPREDATIONS. celed by this office, as relinquished on the
DEPARTMENT OF THE INTERIOR, . papers submitted by Wood, and he was
ALLEN B. LEMMON.
GENERAL LAND OFFICE, allowed to enter the land, which he did Relinquishment of Timber Culture Entry-Ruling
WASHINGTON, D. C., June 20, 1883, on May 24, 1881, per T. C. entry No. under circular of January 12, 1883. Entry is To Special Timber Agents of the General Land 3762. canceled for fraud.
Office. On May 5, 1881, Andrew Korbe filed COMMISSIONER MCFARLAND to Reg. and Rec., You are advised that on and after the an application to contest T. C. entry Witchita, Kansas, June 16, 1883. (L. E. F.S.) first of July next the fixed sum of three No. 91, upon the ground of the failure I am in receipt of your letter of the ($3.00) dollars per day, in addition to the of Kipple or his leirs to comply with 6th inst., transmitting the relinquishment, amount of your annual salary, will be the law, and the further allegation that dated June 2, 1883, by Allen B. Lemmon allowed in lieu of daily actual expenses, the entry bad been relinquished and of his Timber Culture Entry No. 1755, made as now provided by law; which matter sold to 'him (Korbe) for the sum of April 24, 1883, for lots 5 and 6, the S. E. you will bear in mind, and be governed $100.
of the X. W.1, and the N. E. of the accordingly in incurring expenses and in You rejected the application to contest, S. W. 1 of Section 6, Twp. 22 S., R. 10 W. preparing your monthly accounts after for the reason that an application for the
You state that Mr. Lemmon's reputa- the date named. cancellation of the entry was then pending tion is good in your community, and you
N. C. McFARLAND, Commissioner. before this office.
have no personal knowledge of fraud in From this action Korbe appealed. He the case, but that, in view of the fact that
KELLEY, WEEKS & Co. et al. transmitted the duplicate receipt in entry the entry is of such recent date, you for- Timber.—Lumber. -As the two parties interNo. 91, with the original relinquishment ward the same for my consideration, under ested seek to throw the responsibility upon by Mrs. Kipple, as administratris, en instructions contained in circular letter each other, the value of the lumber, not logs, dorsed thereon.certificate from the "A" of January 12, 1883.
is demanded from them jointly. jndze of the probate court, dated June Lemmon states in his relinquishment, SECRETARY TELLER to Commissioner Me Far20, 1880, showing that Mrs. Kipple was which is indorsed on the back of the dupli- land, June 18, 1883. the duly appointed administratrix of the cate receipt, and is signed by himself and Yours of the 15th instant is received, estate of Samuel P. Kipple, deceased, and Clara M. Lemmon, that it is “for value transmitting letter to Special Agent ? certified copy of letter of guardianship received.”
Welch, from Kelley, Weeks & Co., lumber dated August 9, 1880, accompanied the At the time he made the entry he stated dealers, of Racine, Wisconsin, daterl April papers in the case.
under oath that it was for the cultivation 6th last ; letter to Special Agent Welch Korle alleges that he purchased the of timber, and for his own exclusive use from L. F. Parker, of Racine, Wisconsin, relinquishment and inýrovements from and benefit; and that he made the appli- cated April 7th last; and letter from Mrs. Kipple“ on or before the 9th day of cation in good faith, and not for the pur- Hon. Philetus Sawyer, dated the Cth inJuly, 1830," paying her therefor the sum pose of speculation, or directly or indi- stant, enclosing one to him from L. F. of $100.
rectly for the use or benefit of any other Parker, dated the 4th instant; all in relaThere is no doubt but that Mrs. Kipple person or persons whomsoever, and that tion to certain timber purchased by Kelsold to Wood her relinquishment of T. he intended to hold and cultivate the land ley, Weeks & Co., through Parker, from C. entry No. 91 for the sum of $50, and to fully comply with the provisions one Amos F. Ames, which had been dethe money being left in the hands of of the law.
rived by said Ames, from logs unlawfully the probate judge to be delivered to A little more than a month thereafter cut hy him from certain described public
the cancellation of the he relinquishes his entry for a valuable lands in Michigan. This Department has entry.
consideration according to his own state- demanded from Parker and Kelley, Weeks When the papers were returned for ment, which of course is proof conclusive & Co., jointly, the full value of said lumcorrection she attempted to abandon that the relinquishment, at least, was made ber when purchased. Kelley, Weeks & her contract with Wood, and sold the the subject of speculative negotiation, and Co., deny responsibility in the matter, relinquishment to Korbe $100 it is also presumptive evidence, and in my throwing it upon Parker, of whom they ihrough the Charles Miller previously own opinion clearly indicates that the en- purchased. Parker offers to pay the mentioned.
try was fraudulent in its inception, the stum page value of the logs from which the The purchaser of a relinquishment of a party's allegations to the contrary notwith-lumber was derived, two dollars ($2.00) public land entry gains no rights against standing, and it is therefore not capable per thousand feet, board measure; but the United States from the mere fact of of being relinquished.
writes to A gent Welch that he never for such purchase, and the question of dupli- Your action in withholding your accept- a moment supposed” he “could be held cate sales or of the payment or non-pay- ance of such relinquishment is accordingly to pay for that which he never had any ment of price hare no legal bearing in the sustained under paragraph 1 of the in- title to or interest in;" and to Mr. Sawdetermination of a case.
struction in the circular referred to by yer he writes that "it appears entirely unWood presented evidence of a relin-you, and the said entry is this day can just that" he should be made to pay that quishment and therefore of the abandon-celed for fraud, pursuant to paragraplis demand” (the value of the lumber). And ment of Kipple's entry, whereupon that 3, 6 and 9 of the said instructions, there Mr. Sawyer writes that he “thinks the entry was canceled, and his own entry of being no proof to overcome the presump- government ought to accept the propothe land was allowed.
tion of fraud, as provided in paragraph sition.”' While the matter of the cancellation of 7 thereof.
It certainly is no new thing in the operKipple's entry was pending before this You will advise Lemmon at once, and ation of law for the owner of property iinoflice on Wood's application, Korbe ap- in case the party who purchased the re- lawfully taken to demand restitution plied to contest. His application was linquishment has filed an application to thereof or compensation therefor of the properly rejected by you on account of enter the tract, you will not allow him any party—though he be an innocent partythe pending proceedings.
preference right in the matter, but hold 'into whose hands the property is traced.