Alienation-Continued. IV. HOMESTEAD-Continued. An offer to sell, made by a homesteader after the expiration of the statutory period 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. XXII-328 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 consideration, does not operate as a disqualification of a homesteader, nor will a contract that is simply a pledge for the payment of money; and especially will such contracts be so regarded where they appear to have become of no effect prior to the date of the entry. V. MINING CLAIM. XXII-544 The purchaser of a, after entry, but prior to patent, takes the land subject to all the infirmities of title, so far as the Government is concerned. VI. OSAGE LAND. XXII-704 If settlement is made in good faith under the act of May 28, 1880, a subsequent agreement to convey the land will not in itself invalidate the entry. VIII-173 Of Osage diminished reserved land not unlawful after compliance with law and issuance of final certificate. IX-98 The fourth section of the act of May 28, 1880, recognizes the right of an Osage entryman to sell the land covered by his entry after submission of final proof and payment of the first installment of the purchase price. VII. PREEMPTION. XX-411 VI-746 Prior to final proof defeats the right of preëmption. The doctrine of "bona fide purchaser" does not apply to purchase of a preemptor before patent; if the entry is fraudulent or void, the purchaser takes nothing. II-599; III-393 The execution of a warranty deed by preëmptor prior to entry is a legal bar thereto, but does not vitiate the preëmption right, hence the entry may be admitted on reconveyance by the grantee. I-407, 453 Where the land is not subject to preëmption the entryman acquires no interest in it by his entry, and therefore can convey none; his grantee prior to patent is not a bona fide purchaser. II-782, 795 The rescission of an agreement to convey will not validate acts of settlement that were invalid when performed, because made for the benefit of another. III-488; VI-285 Preemption right not defeated by a contract to convey which is rescinded prior to final entry. II-638 Alienation-Continued. VII. PREEMPTION-Continued. The intent to sell after final proof may be compatible with good faith, and not defeat the right of entry. XII-20 Of inconsiderable quantity of land without fraudulent intent not regarded under section 2262, Revised Statutes. I-453 Whether an assignment by the preëmptor after entry was made to a bona fide purchaser is immaterial as affecting the right of the entryman to assign. III-23 Agreement to convey any part of a preëmption claim to another, made prior to final proof, will defeat the exercise of the preëmptive right. XVI-113 A contract made by a preëmptor to convey the land on receipt of final certificate renders the entry fraudulent and requires its cancellation. VIII-269; XV-201 Preëmptor may mortgage his claim to secure money for the purpose of making final proof and payment. I-409; VI-340; IX-337 A mortgage given in good faith on the purchase of the improvements and possessory right of another, and to secure the repayment of money advanced to pay the Government price of the land, does not defeat the preemptive right. XIII-198 The purchaser of a void title can not set up the rule of equitable estoppel; that loss should fall on that one of two innocent persons whose conduct rendered the injury possible. II-797 That one made a speculative settlement under section 2262, Revised Statutes, may be proved by a contract before entry to convey after entry; but an agreement or contract causing title to "inure" could only be made by a formal conveyance. II-781 The clause in section 2262, Revised Statutes, concerning bona fide purchasers refers to sales before, and not after, entry; it has respect to the effect of the conveyance as between grantor and grantee, and not as between either party and the Government; it is to be enforced in the courts, and not in the Land Department. II-779, 781, 783 VIII. TIMBER CULTURE. Making a bond for a deed after a patent, with delivery of possession, retaining only the right of entry for breach of condition, is holding the claim for another's use and benefit, and works a forfeiture, notwithstanding resumption of possession. II-329 A contract of sale in which the entryman is bound to execute a warranty deed to another, on securing title to the land covered. by his entry, defeats the right of the entryman. II-329; XVIII-196 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. XXII-21 Alienation-Continued. IX. TIMBER CULTURE-Continued. The revocation of a contract of sale after the initiation of a contest against the entry charging the fact of, will not relieve the entryman from the consequences of his illegal act. IX. TIMBER LAND. XVIII-196 Prior to patent will not abridge authority of the Department over an entry under the timber and stone act. IX-573; XVII-468 Purchaser of land held under final certificate takes an equity only, and is charged with notice of all defects in the title. X-415; XVII-468 The phrase "bona fide purchaser," as used in the timber and stone act, is not applicable to a purchaser before patent. XIV-618 Transferee under a timber-land entry is not an innocent purchaser where the entry is fraudulent and the transferee is a party to the fraud. XII-313 A purchaser, prior to patent, of land entered under the timber and stone act, takes but an equity, and can not plead the status of an innocent purchaser, nor can it avail such purchaser that the matters wherein the entryman testified falsely were solely within the knowledge of such entryman. XIV-392 A contract or agreement that does not affect, in whole or in part, the title to the land is not within the inhibitory provisions of section 2 of the timber and stone act. Allotment. See Indian Lands. XXII-234 Amendment. See Application; Contest; Entry; Filing; Practice. Annual Proof. See Entry, sub-title, Desert Land. Appeal. See Practice. Does not lie from application of the local office on claims presented on the Vigil and St. Vrain grant. Appearance. See Attorney; Practice, sub-title No. IX. XII-226 A defendant may so far appear as to object to the jurisdiction, and such appearance is "special;" but if he seeks to call into action. any powers of the court except such as pertain to its jurisdiction the appearance is general. XII-620 XII-14 The effect of a general appearance can not be modified by a subsequent allegation that it was special in character. Appearance of, is general in the absence of expressed limitation. VI-269 The appearance is "general" where defendant's attorney appears and cross-examines the witnesses; the effect of such appearance can not be avoided by calling it "special." X-405 Appearance-Continued. For the purpose of securing a new trial on the ground that proper notice was not given of the former proceedings, confers jurisdiction upon the local offices for the purposes of the motion. XV-404 Appearance of attorney in a case is general if he seeks to call into action any powers of the court except such as pertain to its jurisdiction. XII-620 A party may not plead a special, where the record discloses a previous general appearance without limitation as to the purpose thereof. XVII-393 At a hearing without objection to the notice waives any defect therein. XVII-393 For the purpose of securing an order to take testimony by deposition and a continuance until said testimony is taken and returned is general, and confers jurisdiction on the local office. XVII-159 Application. See Contest; Railroad Lands. I. GENERALLY. II. AMENDMENT. III. DESERT LAND. IV. HOMESTEAD. V. PREEMPTION. VI. PRIVATE ENTRY. VII. TIMBER CULTURE. VIII. TIMBER AND STONE. IX. WITH CONTEST. X. WITH RELINQUISHMENT. I. GENERALLY. A rule of the local office regulating the presentation of, adopted to avoid confusion, is conclusive upon parties taking action thereunder without protest. XVIII-14 Regulations of the local office governing the manner of making, on opening public lands to entry conclusive upon parties taking action thereunder without protest. XIV-370 In the absence of, the right to make an entry will not be considered. IV-310; VII-254; IX-194 To enter, must show residence and post-office address. Circular of XXI-445 v-198 When filed, name of applicant to be noted thereon. Application—Continued. I. GENERALLY-Continued. It may be fairly presumed that the proper tender of money was made therewith, where the record is silent as to such tender, and the application is rejected for a reason not involving any question with respect to the tender of money. XXI-187 Not defeated by failure to fill a blank left in the prescribed form of preliminary affidavit where the intended use of said blank is not apparent. VI-365 To make entry that does not show the applicant's qualifications may be properly rejected, and a defect in such respect can not be cured by subsequently calling attention to another record. XIV-531 To enter filed since the act of August 30, 1890, must be accompanied by an affidavit showing that since said act the applicant has not filed upon nor entered a quantity of land that would make, with the tract applied for, more than 320 acres. XVI-271 To enter must show the present status of the land and qualifications of the applicant. X-364; XIII-365 To enter, based on application and preliminary affidavit, executed while the land is not legally liable to disposal, should not be allowed. I-164; II-269; III-320; XIV-127; XVII-345, 529; XVIII-482; XIX-178; XXII-276 The validity of, is not affected by the fact that the preliminary affidavit is executed before the land is formally declared open to entry, where, prior thereto, the land in question was restored to the public domain by an act of Congress. XIX-570; XXII-110, 486 Preliminary affidavit accompanying is invalid if sworn to before the township plat is filed. I-157 Preliminary affidavit with, may be received though executed while the land was covered by a prior entry. (Commissioner's instructions.) I-121 Filed before cancellation of an entry (after relinquishment), with fees and commissions, gave applicant no rights. II-49 Allowed on preliminary papers executed while the land is covered by the prior entry of another is not void but voidable. The defect in such case may be cured in the absence of any adverse claim. XX-13, 57 Acceptance of, with agreement to place of record when a previous entry is canceled confers no right. II-49 The presentation of papers to the local office, with instructions to file them under certain contingencies, is not a legal. VI-365 Transmitted by mail is to be regarded as filed at the moment it reaches the local office (9 a. m.), though the letter of transmittal is not opened until afterwards. II-326 |