A motion for review of this judgment was overruled, and the present petition asks a re-review of these decisions. In view of recent legislation by Congress which controls the issue in this case, it is not deemed necessary to set forth the grounds of this petition, or discuss the questions raised thereby. It is only required to state such facts as are pertinent now, with the view of ascertaining if the matters involved come within the terms of the act of Congress. Bourke in his final proof swears that he built his house on the land in December, 1889, "and established actual residence January 24, 1890.” The present controversy arose in this way: On April 9, 1892, George B. Eames applied to contest Bourke's entry on the ground that the commutation proof and entry were illegal, in that it was made under Sec. 2301 of the Revised Statutes. Your office, by letter of April 30, 1892, declined to order a hearing, for the reason that there was no charge affecting the validity of the entry, "nor does it charge fraud or bad faith on the part of the entryman." Your office decided that the proof was prematurely made; held the final certificate for cancellation, keeping the entry intact to permit the entryman to submit commutation proof at the proper time. On motion for review, that judgment was modified "by revoking the order of cancellation, and instead thereof, order that Bourke's final certificate and proof be held suspended until the expiration of fourteen months from date of his entry," when he might submit supplemental proof. An appeal brought the case to the Department, and your office judgment was affirmed (18 L. D., 150). By act of Congress of June 3, 1896 (Public No. 173), it is provided: That whenever it shall appear to the Commissioner of the General Land Office that an error has heretofore been made by the officers of any local land office in receiving premature commutation proofs under the homestead laws, and that there was no fraud practiced by the entryman in making such proofs, and final payment has been made and a final certificate of entry has been issued to the entryman, and that there are no adverse claimants to the land described in the certificate of entry whose rights originated prior to making such final proofs, and that no other reason why the title should not vest in the entryman exists except that the commutation was made less than fourteen months from the date of the homestead settlement, and that there was at least six months' actual residence in good faith by the homestead entryman on the land prior to such commutation, such certificates of entry shall be in all things confirmed to the entryman, his heirs, and legal representatives, as of the date of such final certificate of entry and a patent issue thereon; and the title so patented shall inure to the benefit of any grantee or transferee in good faith of such entryman subsequent to the date of such final certificate: Provided, That this act shall not apply to commutation and homestead entries on which final certificates have been issued, and which have heretofore been canceled when the lands made vacant by such cancellation have been reentered under the homestead act. SEC. 2. That all commutations of homestead entries shall be allowed after the expiration of fourteen months from date of settlement. In the entry under consideration no fraud is apparent in making the final proof; there are no adverse claims to the land in controversy that originated prior to final proof; there is no reason shown to the Depart ment why title should not invest in the entryman "except that the commutation was made less than fourteen months from the date of homestead settlement," and on the face of the record it is shown that the entryman in good faith actually resided six months on the land prior to commutation. It is also apparent that the commutation allowed in this case was "after the expiration of fourteen months from date of settlement." It is clear, therefore, that under the provisions of this act, the entry of Bourke is confirmed, and the same should pass to patent, if otherwise satisfactory. It is so ordered, and the former decisions suspending the entry are hereby revoked. YOUNG v. SEVERY ET AL. Motion for review of departmental decision of February 10, 1896, 22 L. D., 121, and application for rehearing denied by Acting Secretary Reynolds June 18, 1896. TIMBER LAND ENTRY-APPLICATION-PRELIMINARY AFFIDAVIT. STURM v. TAYLOR. An application to enter land under the timber and stone law may be properly rejected, if the preliminary affidavit does not show that the applicant has personally examined the land. Acting Secretary Reynolds to the Commissioner of the General Land Office, June 18, 1896. (G. C. R.) The homestead entry of William Taylor, made July 27, 1892, for the S. of the NW. of Sec. 1, T. 58 N., R. 20 W., Duluth, Minnesota, was canceled on January 5, 1895, on a contest brought by Frances A. Regan. On January 8, 1895, Lydia K. Sturm applied to purchase the land under the timber and stone act of June 3, 1878 (20 Stat., 89). On January 28, 1895, Frances A. Regan executed and acknowledged an instrument in writing, waiving her preference right of entry under her contest, and on the same day Alexander Taylor made application to enter. The same was allowed by the register, who, at the same time, rejected Miss Sturm's application, for the reason that she failed to state that she had personally examined the land. Your office decision of May 22, 1895, affirmed that action, and a further appeal brings the case here. The principal question raised in this appeal is, whether one who files a preliminary affidavit, with a view to enter land under the timber and stone act, is required to state in such affidavit that he or she has personal knowledge of the facts therein set forth; and whether on failure to show such personal knowledge, the land is subject to entry by another and subsequent applicant. Among other requirements imposed by said act, it is provided in the second section thereof that a person desiring to avail himself of its provisions shall file with the register "a written statement," to be verified by the oath of the applicant, stating, among other things, that the land is unfit for cultivation and valuable chiefly for its timber and stone, and is uninhabited, and contains no mining or other improvements. This oath must be made by the applicant, and, therefore, must be upon his or her personal knowledge. L. M. Walker, 11 L. D., 599. Miss Sturm only stated that she had "had" the land examined, and from the knowledge "thus obtained" made her statement. This did not meet the plain requirements of the statute, and the register was authorized to reject her application. Although Miss Sturm's statement made upon information and belief was afterwards corroborated by witnesses, who swore that they had personal knowledge of the land, yet these affidavits were made subsequent to Taylor's entry, and after her application had been rejected. She has no valid grounds for complaining. The decision appealed from is affirmed. INDEX. That the expense of a survey is payable In the adjustment of an account under By the provisions of section 8, act of same Alaska. See Certificate of Deposit; Survey; Town- 471 471 583 While Congress has made no provision 10332-VOL 22- -46 330 A timber-culture entry will be canceled A contract or agreement that does not An offer to sell, made by a homesteader An entry made in pursuance of section 21 234 328 375 An agreement for conveyance that The purchaser of a mining claim after See Indian Lands. Appeal. See Practice. Application. See Contest. To make entry of public land can not 704 276 721 entry the timber on the tract first applied The validity of, is not affected by the The preliminary affidavit (Form 4-102 On the part of a State to select lands To enter, improperly held to await To enter, filed subject to a contestant's An applicant for the right of entry who, To enter accompanying a timber-cul- The circular instructions of August 18, To enter filed by a homestead contest- To make a timber-land entry may be 486 114 385 571 203 295 182 182 96 337 To enter under the timber and stone Failure to appeal from the rejection of, The failure of an applicant for a tract Order of June 13. 1896, with respect to, To enter received during a vacancy in In the case of simultaneous, where one Arid Lands. See Reservoir Lands. Attorney. 424 719 576 630 704 612 612 |