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[TITLE 3. such land, or where the land shall hereafter become subject to private entry, and after that period a settlement shall be made, which the settler is desirous of securing under this act, such notice of his intention must be given within thirty days after the date of such settlement.”
The word "both," in the fourth line on the second page, should be “all;" and the word "case," in the ninth line of the same page, "cases." A number of copies of this page will be furnished for the purpose of being attached to the circular of the above date, after the tenth page. I am, very respectfully, gentlemen,
Your obedient servant,
E. M. HUNTINGTON, Commissioner.
The Register of the Land Office, and Receiver of Public Moneys,
GENERAL LAND OFFICE,
Gentlemen :-The act of Congress, of the 26th August last, (No. 62,) entitled “An act to confirm the sale of public lands in certain cases,” contains the following declaration, viz: "That the act of fourth September, eighteen hundred and forty-one, entitled 'An act to appropriate the proceeds of the sales of public lands, and to grant pre-emption rights,' shall be so construed as not to confer on any one a right of pre-emption by reason of a settlement made on a tract heretofore sold under a prior pre-emption law, or at private entry, when such prior pre-emption or entry has not been confirmed by the General Land Office, on account of any alleged defect therein, and when such tract has passed into the hands of an innocent and bona fide purchaser."
No entry will therefore be permitted, by virtue of the Act of 4th September, 1841, of any tract of land sold prior to 26th August last, whether by pre-emption or private entry, where such entry has been rejected by this Office; provided the land so purchased has, prior to that time, "passed into the hands of an innocent bona fide purchaser."
All transfers or assignments to third persons are presumed to be to “innocent and bona fide purchasers," unless the contrary is shown by satisfactory evidence.
The books and plats of your office will show whether a sale of the land by the government has been made; and where the records or papers do not exhibit evidence of a transfer or assignment from the original purchaser to another person, information must be sought and had from this Office, before permitting a claimant under the Act of 4th September, 1841, to enter the land so sold.
The experience of this Office as to the operation of the Act of 4th September, 1841, during the past year, seems to require the additional instructions subjoined.
You will require of every claimant, satisfactory proof that he had not left his "own land in the same State or Territory," to make the settlement by virtue of which he claims a right under the Act of 4th September, 1841.
Lands subject to private entry, at the time of the settlement thereon, cannot be entered by the settler under the law of 4th September, unless he shall file a declaratary statement, such as the 15th section of the act requires, and in due time produce the necessary proof of his right, and make the affidavit required by the law.
Where such settler, instead of entering the land, as he might, at private entry, elects to enter the same under the provisions of the law of 4th September, 1841, (whereby he obtains a year's time from the date of the settlement to make the payment,) he is bound to comply with all the requirements of that law. A failure to do so, in regard to any of these requirements, * and any renders the land subject to the entry "of any other purchaser,' person so failing is positively debarred by the law from the privilege of making a private entry of the same under any pretence. Instances have been made known where persons filed the declaratory statement, as required, without any improvements having been made, merely with a view of keeping the land from being entered by any other person for a year, intending near the expiration of that time to abandon their pretended pre-emption claim, and enter the same at private entry. The consummation of all such cases must be prevented, and this can be done by requiring a rigid compliance with all the provisions of the law, as above directed.
A claimant is bound to prove his right to, and enter, all the land embraced by his declaratory statement, if liable to the operation of the act. Declaratory statements are required only†" for land subject to private entry" at the time of settlement, and they should not be received, filed, or reported to this Office, if presented for any other land; nor should they be received for forty-acre lots, unless they are "residuary" ones, such minor subdivisions, with the exception of residuary§ tracts, not being liable to the operation of the Act of 4th September, 1841. The law provides only for settlements made since 1st June, 1840. Where, therefore, parties have made settlements prior to that time, and have not availed themselves of the privileges of the pre-emption Act of 1st June, 1840, their own neglect has deprived them of any right of pre-emption founded on such settlements.
The proof filed by every claimant must show the time|| of the commencement of the settlement, as required by the first paragraph, fifth page of the Instructions of 15th September, 1841. (No. 408.)
The affidavit of the claimant required by the 13th section of the act must be taken "before the Register or Receiver of the land district in which the land is situated" before an entry is permitted, and must be of the same date with the certificate of entry. An affidavit before any other person will not justify your permitting the entry of the land claimed.
To entitle a claimant to the benefits of the Act of the 4th September, 1841, it is necessary that he should have been either a citizen of the United States, or have filed his declaration of intention to become a citizen, at the time of the settlement upon which his claim is based.
The law confers only on the first settler the right of pre-emption. The
* Obsolete. See proviso to 9th section, Act of 3d March, 1843, (No. 72.) Circular of 8th May, 1843, (No. 411.)
+ Since the date of this Circular, the Act of 3d March, 1843, has been passed, the 5th section of which requires similar declaratory statements for "unoffered land." See Circular of the 8th May, 1843. (No. 411.)
By Act of 8th May, 1846, (No. 104,) forty-acre tracts, whether of "offered" or "unoffered" land, are rendered subject to pre-emption. See Circular of 14th May, 1846. (No. 412.)
? Where an entry has been made of one forty-acre lot of a legal eighty-acre subdivision, in virtue of the Act of 5th April, 1832, (No. 24,) entitled "An act supplementary to the several laws for the sale of the public lands," the contiguous forty-acre lot of such legal subdivision is called the "residuary quarter-quarter."
This date is all-important for the purpose of determining in all cases whether the settlement was made within the proper time; and in those where the declaratory statement is required, whether such statement was filed in due season, and the entry made within the legal period after the settlement.
question of priority will in all cases be decided by you; and where an appeal from such decision is taken, you will transmit to this Office, for reference to the Secretary of the Treasury, [Interior,] the evidence filed by all the parties claiming the said land, with a brief reference to the grounds of your decision.
The action of the Secretary of the Treasury [Interior] will be reported to you, and then the entry can be made by the person in whose favor the decision may be, on the Secretary's revision of the case.
Very respectfully, gentlemen,
Your obedient servant,
The Register of the Land Office, and
THO. H. BLAKE, Commissioner.
GENERAL LAND OFFICE, May 8, 1843. Gentlemen-Annexed (see No. 72,) is a copy of an act of Congress, approved on the 3d March last, "to authorize the investigation of certain alleged frauds under the pre-emption laws, and for other purposes."
Wherever the time prescribed for making proof and payment on a claim, by the law under which it originated, has expired, the provisions of the present act do not apply.
The first section of the act, being of special application to a single land district, has been acted on accordingly.
The second section provides for the rights of parties who shall have died before consummating their claims by the filing, in due time, of all the papers essential to establish the same. Under it you are authorized, if proof of such right shall be filed and payment therefor be made by the executor, administrator, or one of the heirs during the period prescribed by the law upon which the claim is founded, to permit the entry in the name of "the heirs," of the deceased claimant. A patent on such an entry will cause the title to inure to said heirs as if their names had been specially mentioned. In cases of this kind, the affidavits required of the pre-emptor by the Acts of June 22, 1838, June 1, 1840, and September 4, 1841, (No. 48,) respectively, will be taken by the person so filing the proof; and should such person be one of the heirs, he or she should be of age, and mind competent to appreciate the nature and obligation of an oath. [Forms for such affidavits are hereto annexed, marked A and B.]
The third section provides for cases under all the previous pre-emption laws, except that of September 4, 1841, where the settlement was made on unsurveyed land and is subsequently discovered to interfere with section sixteen, reserved for schools, or with a tract reserved for any other purpose, or with a tract covered by a private claim. It admits the settler thus circumstanced to enter any other quarter-section, or fractional section, or fractional quarter-section, in the same land district, so as not to exceed one hundred and sixty acres of land, not reserved from sale or in the occupancy of any other bona fide settler.
Under the third section of the Act of 1st June, 1840, settlers within the purview of the Act of 1838 or 1840, who resided on a sixteenth section reserved for schools, did enjoy the right of locating a "quarter-section" anywhere else in the same land district, to which no other person had " right of pre-emption." The present act, in extending to such settlers on
a sixteenth section the increased privilege of locating at their option other species of tracts, viz: "fractional section," or "a fractional quarter-section," restricts the previous privilege of location to vacant and unimproved land. No location is to be allowed by you under this section of the act, unless upon the filing of satisfactory proof that the substituted land is not in the occupancy of any bona fide settler; which testimony, with the other papers in the case, you will transmit to this Office. [See Note I., post.] The fourth section declares it unlawful for an individual who has once filed a declaration for one tract of land, to file at any future time a second declaration for another tract. This has reference to those required, under the 15th section of the Act of 1841, for land subject at the time of settlement to entry at private sale. Your record of such declarations will afford you some means of detecting a violation of this provision; and whenever you do detect it by any means whatever, you are to refuse to receive or notice the same; and if such declaration shall have been received and reported to this Office before the discovery is made, such fact will not prevent your regarding the land as subject to the entry of the first applicant, in the same manner as if no declaration had been filed.
The fifth section requires that similar notices or declarations in writing should be filed by settlers under the Act of 4th September, 1841, on land not subject to private entry. These declarations are to be filed in your office by every such settler within three months after his settlement, except as to those whose settlements were made prior to the 3d March last; in which cases, such declarations are to be filed within three months from that date, viz: before the 3d June next. The register will number such statements regularly in the order of their date of reception, enter them in a suitable book prepared therefor, furnish this Office with monthly abstracts from said book, and in all other respects pursue the same course in relation to them as he is required to do by the 3d and 4th paragraphs on the second page of the Circular of 15th September, 1841, in regard to the declarations. therein referred to. Particular care must be taken not to confound the two species of declarations, but to keep separate files thereof, enter them in the respective books prepared for each, and in the monthly abstracts transmitted to this Office, discriminate between the two by heading the one "For land subject to private entry," and the other "For land not yet offered for sale." [A form for a declaration under this section of the act is hereto appended, marked C.]
By the sixth section, provision is made for the benefit of claimants whose rights might otherwise be jeoparded by reason of a vacancy which has occurred, or may hereafter occur, in either of your offices, or both. By it a claimant is authorized hereafter to file a declaration, under the law of 4th September, 1841, or to make an entry of a claim under any of the pre-emption laws, although the time prescribed by the law for the filing of such declaration or the making of such entry shall have expired, provided the claimant was prevented by such vacancy from performing said act or acts within such time, and shall perform the duties required by the law within the same period after the disability is removed as he would have had if such vacancy had not occurred. [See Note II., post.]
The seventh section extends the privileges given to one class of claimants under the Act of 22d June, 1838, by the 1st section of the Act of 1st June, 1840, to another class of claimants under the same law. In future, a settler who shall have resided, "on the 22d June, 1838, and for four months next preceding," on a quarter-section, a fractional quarter-section, or a fraction of a section less than one hundred and sixty acres, and have cultivated land on any other and different tract of either of the descriptions above
mentioned, such settler is entitled to a choice between the tract resided on and the tract cultivated, or legal subdivisions of each, to include his or her house and farm, so as not to exceed one hundred and sixty acres, upon filing the requisite proof and making payment for the land claimed within the period prescribed by law. This extension of benefits is made to single settlers, and to those only whose settlements were made at the period required by the Act of 22d June, 1838; it does not apply to settlements made since 22d June, 1838, and prior to 1st June, 1840. [See Note III., post.]
The eighth section modifies the first proviso of the Act of 22d June, 1838, applicable as well to claims under that act as to those under the Act of 1st June, 1840. In future, where two or more were residing on a quarter-section, fractional quarter-section, or fraction of a section less than one hundred and sixty acres, at the period required by the Act of 22d June, 1838, or that of 1st June, 1840, and any one or more of such residents were cultivating, during the same period, on another and different tract, or other and different tracts, the persons so cultivating have the option of entering the tract lived on, jointly with the other or others, or of abandoning the tract lived on to those who have not cultivated, and entering the tract or tracts cultivated, so as not to exceed one hundred and sixty acres to any one settler so cultivating. Where the persons cultivating do not abandon the tract resided on, a joint entry by all the residents may be made of such tract and other "contiguous unoccupied lands, by legal subdivisions," to the extent of as many times one hundred and sixty acres, in the whole, as there are residents on the first mentioned tracts entitled under the same law. Where the cultivator or cultivators abandon the tract resided on to the other residents, the former are entitled to make a separate entry of the tract or separate entries of the tracts cultivated, not to exceed one hundred and sixty acres to any one settler, and the latter have no claim to any land in addition to that resided on. In cases under this section of the act, each cultivator must file separate proof of his right, so as to enable you to file the same with the separate entry of such cultivated tract. The "contiguous" unoccupied land referred to in this section of the act is to be understood as land separated from the tract resided on, by a line only, not land in the neighborhood as near as may be; and where there is no such contiguous land, by reason of its being rightfully claimed by, or in the occupation of others, the right fails. Such contiguous land is to be embraced in the same certificate with the land on which the claimants reside. The proviso to this eighth section limits the extended privileges given by the act. It may, therefore, happen that a tract other than a quartersection may be claimed (under the provisions of the 7th and 8th sections of this act) by virtue of its cultivation during the period required by the Act of 22nd June, 1838, where the same tract is claimed by a resident thereon under the Act of 1st June, 1840, or under that of 4th September, 1841; or it may be the subject of conflict between a cultivator at the time required by the Act of 1st June, 1840, (under the eighth section of this act,) and a resident under the Act of 4th September, 1841. In all such cases, the first mentioned claims, which would otherwise exist under this act, must yield to the "previous and paramount right of pre-emption," founded on the provisions of law existing at the date of this act. [See Note IV., post.] By the ninth section you are authorized to permit the entry of a claim under the Act of 4th September, 1841, although it may be for land not surveyed at the time of the settlement, where such settlement was made prior to the 4th September, 1841, and after the extinguishment of the Indian title. The object of this, it will be seen, is to modify the provi