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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.)

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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.

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That the expense of a survey is payable
from the repayment fund provided for in
the act of July 2, 1864, does not take the
adjustment of the account out of the rule
authorizing a deduction from the agreed
compensation when the work is not done
within the stipulated period..

In the adjustment of an account under
a deputy surveyor's contract the Com-
missioner of the General Land Office is
authorized to make a deduction of 5 per
cent from the agreed compensation, if the
work is not performed within the stipu-
lated time, and no extension of such time
is granted or applied for.

By the provisions of section 8, act of
July 31, 1894, the acceptance of payment,
under settlement of an account by an au-
ditor without the suspension of any item
therein, precludes the revision of the

same

Alaska.

See Certificate of Deposit; Survey; Town-
site.

471

471

583

While Congress has made no provision
for determining the extent of the claims
of the Greco-Russian Church in, or the
validity of its title thereto, yet the pos-
sessory claims of said church have been
protected in executive action taken by
the State, War, and Treasury Depart-
ments, and allowed to remain in the hands
of the church; but, in the absence of statu-
tory authority therefor, the Interior De-
partment can not undertake to identify,
by survey, the lands of the church and
determine the title of the church thereto. 330
If any of the property held by the
Greco-Russian Church has been included
within the limits of an executive reserva-
tion, the President has the authority to
modify the order therefor, so as to ex-
clude the lands erroneously embraced
within such reservation..

10332-VOL 22- -46

330

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A timber-culture entry will be canceled
where it appears that the entryman has
disposed of all his interest in the land, and
is holding the entry for the benefit of the
party purchasing such interest..

A contract or agreement that does not
affect, in whole or in part, the title to the
land is not within the inhibitory provi-
sions of section 2 of the timber and stone
act

An offer to sell, made by a homesteader
after the expiration of the statutory pe-
riod of residence and the submission of
final proof, but pending the allowance
thereof, is not inconsistent with good
faith on the part of the entryman..

An entry made in pursuance of section
1, act of October 1, 1899, is not invalidated
by an agreement to convey the land cov-
ered thereby, made prior to the consum-
mation of the transfer authorized by said
act..

21

234

328

375

An agreement for conveyance that
could not be enforced in a suit to compel
specific performance, and that may be
avoided by the payment of a money con-
sideration, does not operate as a disquali-
fication of a homesteader, nor will a con-
tract that is simply a pledge for the pay-
ment of money; and especially will such
contracts be so regarded where they ap-.
pear to have become of no effect prior to
the date of the entry.
544

The purchaser of a mining claim after
entry, but prior to patent, takes the land
subject to all the infirmities of title, so far
as the government is concerned.
Allotment.

See Indian Lands.
Amendment.
See Entry; Practice.

Appeal.

See Practice.

Application.

See Contest.

To make entry of public land can not
be allowed if based upon preliminary
papers executed prior to the time when
said land is legally subject to such appro-
priation.....

704

276

721

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entry the timber on the tract first applied
for was destroyed by a forest fire,
through no fault of the applicant

The validity of, is not affected by the
fact that the preliminary affidavit is exe-
cuted before the land is formally declared
open to entry, where, prior thereto, the
land in question was restored to the pub-
lic domain by an act of Congress..... 110,486
A preliminary affidavit executed be-
fore a United States commissioner out-
side of the county in which the land is
situated is irregular, and a new affidavit
should be required.

The preliminary affidavit (Form 4-102
b) should be executed within the district
in which the land is situated; but where
not so made, an entry may be equitably
confirmed for the benefit of a purchaser
whose good faith is apparent..

On the part of a State to select lands
should be rejected, if the lands applied
for are not open to such appropriation at
the date of selection, or at the time when
the application is received..

To enter, improperly held to await
prior proceedings involving the land,
when allowed, will relate back to the
time when it was received with the
proper fees, and cut off intervening ad-
verse claims.

To enter, filed subject to a contestant's
preferred right of entry take precedence
in the order of filing, if the contestant
fails to exercise his privilege..

An applicant for the right of entry who,
under a rule adopted by the local office,
deposits his, and receives a number cor-
responding to his place in the line of ap-
plicants, and thereafter fails to respond
to such number when it is reached and
called, loses his priority as against a sub-
sequent intervening applicant

To enter accompanying a timber-cul-
ture contest, and pending at the repeal of
the timber-culture law, protects the
right of the applicant until final action
thereon

The circular instructions of August 18,
1887, to the effect that all, filed with timber-
culture contests shall stand rejected if
not perfected within thirty days after
notice of cancellation are not applicable
if the application is not returned to the
local office

To enter filed by a homestead contest-
ant with his contest serves no purpose...
The failure of a timber-land applicant to
personally inspect the tract prior to his,
can not be regarded as evidence of bad
faith where, under the regulations then
existing, the applicant was not required
to make a sworn statement that he had
so examined the land.

To make a timber-land entry may be
changed as to the land included therein
on a satisfactory showing that after the
date of the original application and prior
to the time fixed for the completion of the

486

114

385

571

203

295

182

182

96

337

To enter under the timber and stone
law may be properly rejected if the pre-
liminary affidavit does not show that the
applicant has personally examined the
land

Failure to appeal from the rejection of,
does not defeat the right of the applicant
if he has not given the requisite notice in
writing of the adverse action and of his
right of appeal therefrom

The failure of an applicant for a tract
of land to appeal from adverse action of
the local office will not be held to preju-
dice his rights where such action is not
indorsed on the, and the applicant noti-
fied of his right of appeal.

Order of June 13. 1896, with respect to,
filed during vacancy in local office.

To enter received during a vacancy in
the office of the register must be treated
as simultaneous, on the resumption of
business in the local office..

In the case of simultaneous, where one
of the applicants has settled upon and
improved the land, and the other has not,
the priority of right should be accorded
to the actual settler.

Arid Lands.

See Reservoir Lands.

Attorney.

424

719

576

630

704

612

612

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