Contest-Continued. II. FOR WHAT-Continued. Will lie against an entry of Kansas Indian-trust land for non-compliance with law or other sufficient cause. IX-329 Will not lie against an Indian allotment that has been finally approved by the Department. XIX-167 A preferred right of, as against a town-site selection, may be equitably accorded a bona fide homestead settler on a tract covered by a town-site declaratory statement. XIII-143 Against an entry of lands withdrawn for the benefit of a railroad grant confers no right as against the grant. Purchase of homestead improvements gives no preferred right of contest. Not allowed to the holder of a relinquishment. XIX-11 II-62 III-150; v-5; XVIII-144, 358 On the ground of relinquishment and abandonment, begun for speculative purposes by one who holds the relinquishment, and subsequently files the same, confers no right on cancellation. XIII-493 Not required to call attention to irregularities in final proof, a protest sufficient. IX-495 The regularity of an entry can not be called into question except by one who shows that the allowance of such entry is in violation of his prior right or equity. XII-639 Proceedings initiated by one claiming a superior right to the land are in the nature of a contest, and must be governed by the rules provided therefor. VIII-493 A hearing on protest against final proofs (preëmption) does not initiate a contest. II-581; III-399 May be allowed where the life of the entry has expired without final proof, or the entryman may be called upon to show cause why his entry should not be canceled. IX-287 On the ground that the entry was made while the land was in the possession of another good under the general circular of 1879. II-67 Based on a prior settlement right, to be effective as against the subsequent entry of another, should be brought within the period provided for the assertion of settlement claims. XV-397; XVI-266, 270 One who seeks to rescind a contract for the withdrawal of a, on the ground of fraud, should establish the charge by irrefragable evidence and tender a return of the consideration received. XV-451 It is no ground of, that the entryman, for a consideration, agreed to contest a prior entry of the land, and, if successful, to waive the preference right in favor of contestant, and that said entryman thereafter refused to abide by said agreement, but, having secured the cancellation of the prior entry, entered the land himself. XVIII-577 Contest-Continued. II. FOR WHAT—Continued. A charge of fraud in the procurement of a relinquishment will not be entertained, as against a record entryman, on behalf of a third party who alleges that he is in possession of a prior relinquishment and intended to enter the land in controversy. XXII-150 An allegation that an entry is made in bad faith and for the purpose of speculation, and not for the purpose of actual settlement and cultivation, warrants investigation as to the matter so charged. General charge of fraud not ground for. XXII-245 By issue raised, after final proof, as to compliance with the law. IV-20 IV-304 Preferred right of, awarded to conflicting entryman. Local office may not direct, as between preëmptor and timber-culture claimant. I-481 Will lie for fraud or failure to comply with the law at any time before patent issues. III-142 The enforcement of contracts between claimants for public land is not properly within the scope of a, before the Land Department. XX-13 The Land Department has no jurisdiction over disputes between settlers as to the ownership of improvements. XX-3 It is not within the province of the Department to determine the mental capacity of an entryman on a charge that he is an "idiot and incompetent to enter public land," in the absence of proper judicial proceedings (see 12 L. D., 690). XV-399 III. CHARGE. See Affidavit; Practice, sub-title, Amendment. The Rules of Practice do not require an affidavit of, to be executed before the local officers. XVII-540 Affidavit of, in the nature of an information and not essential. VI-299; VII-41 Affidavit of, may be based upon the information and belief of the contestant. III-513; XV-114, 301 An affidavit of, may be properly rejected if not executed in due form, and the contestant in such case acquires no rights thereunder. III-310; IV-255 XII-545 Contest based on verbal information will not be dismissed when no objection was made at the hearing. Affidavit of, is in nature of an information, and when accepted, notice issued, and service made, jurisdiction is acquired. v-657 It is not the affidavit, but due notice to the settler, which vests jurisdiction in the local officers. II-58, 312; IV-255 Any question involving the sufficiency of the information upon which the local officers elected to proceed disappears from the moment that notice to the settler has been issued. II-58, 65; III-208, 248, 278 Contest-Continued. III. CHARGE-Continued. The sufficiency of a charge will not be considered if the question is not raised before the submission of testimony. I-114; IX-255; XVII-4; XVIII-540 The defendant only can object as to the sufficiency of the charge. XIII-258 III-57; V-639 Objection to the sufficiency of the affidavit of, can only be raised. by the defendant, and not by him prior to the day set for the hearing. Informalities in, may be excepted to only on the day set for hear、 ing, and then only by a party to the record; if not then excepted to, they are to be regarded as waived; if a motion to dismiss. therefor be made, it should be granted, or an amendment of the affidavit may be allowed. II-217, 221; II-374; IV-255; v-657 Sufficiency of affidavit for contest not considered except on objection. Objection to an affidavit of, is not waived by going to trial after such objection is overruled. X-181 Local officers should carefully examine the contest papers, point out their defects, and allow immediate amendment. II-260 Affidavit of, should be dated and show continuance of default alleged. IV-425 XIX-210 IV-84 A clerical error in dating an affidavit of, by which the contest is made to appear premature, affords no ground for the dismissal of the. Should not be dismissed because the affidavit of, is not dated. XI-346 The amendment of an affidavit of, relates back to the original, and excludes intervening contests, where the said amendment does not introduce new grounds, but merely makes more specific and definite the original charge. XIX-309 Affidavit of, may be amended on the suggestion of the entryman's death and his heirs made parties to the suit; and the right to so amend is not defeated by the pendency of a contest filed by another party at the same time, against the entry in question. IV-538; X-261; XVIII-583 Affidavit of, if not properly corroborated, may be rejected by the local officers. IV-255; VIII-446; XI-325; XVI-391; XVII-125; XIX-453 An affidavit of, based upon information and belief, and corroborated by statements showing no specific knowledge of the facts alleged, may be properly regarded as not affording a basis for a hearing. XX-13 Affidavit of, if made upon facts within the knowledge of the contestant, may be corroborated by witnesses who testify on information and belief; but if the contestant's allegations rest upon information and belief they should be corroborated by witnesses whose statements are based on personal knowledge of the facts. XVI-391 Contest-Continued. III. CHARGE-Continued. A corroboratory affidavit of, based on personal observation is sufficient. XXI-211 In the matter of the affidavit of, the testimony of one corroborating witness is sufficient. XIII-24; XIV-696 A letter from the receiver of a local office attached to an affidavit of, in support of the charge therein, may be accepted as due corroboration where said charge involves a matter of record within the official knowledge of said officer. XIII-333 Affidavit of contest signed by contestant's attorney as one of two witnesses is valid. II-217 When irregularly allowed (during suspension of the entry) on uncorroborated affidavit, the uncontradicted testimony thus submitted by the contestant may be afterwards taken as corroborating the affidavit and warrant proceedings when the entry is relieved from suspension. XVII-96 An affidavit of, may be properly rejected if not corroborated; and where the contestant in such case waives the right of appeal and subsequently furnishes the requisite corroborative affidavit, his right to proceed dates from such time, and should not be recognized in the presence of an intervening contest regularly initiated, and if so recognized, the preferred right must be accorded to the intervening contestant. XIX-453 It is properly within the discretion of the Commissioner to deny a hearing on an affidavit of, corroborated by a witness who has been convicted of perjury in making said corroboratory affidavit. XXII-159 Affidavit of, may be corroborated on information and belief of affiant. XIV-588; XV-300 The sufficiency of a corroboratory affidavit is a question resting in the discretion of the Land Office, and as a rule the defendant only is entitled to be heard on objection thereto. XV-415 Should not be allowed where the corroborating witness swears to the facts set forth as true "to the best of his information and observation." I-140 After hearing and judgment against contestee on the merits by the local officers it is error to dismiss contest for want of the corroborating affidavit of one or more witnesses. II-61, 210, 312 Affidavit filed as the basis of, does not justify hearing thereon unless it sets forth clearly charges that will warrant cancellation if proven. III-378; IV-369; VII-452; XI-325; XVII-125, 177 The allegations in affidavit of, will not be held insufficient if the charges therein, taken together, set forth a state of facts that warrant cancellation. XVIII-2 Contest-Continued. III. CHARGE-Continued. Where an affidavit of, contains an allegation as to a condition existing at the date of the contest, which from its nature must also have existed at the date of the entry, the allegation will be regarded in the same light as if the condition had been alleged to exist at the inception of the entry. XIX-108 Though the charge may be general in character, it will not be held error on the part of the local office to proceed with the hearing where the alleged default, if found true, calls for cancellation of the entry. XXII-89 In matters not specifically charged the issue is solely between the entryman and the government. VII-408; X-232; XVI-380; XIX-172 In absence of a specific charge, and proof thereof, the contest must fail, leaving the issue between the entryman and the government. XVIII-465 XVII-452 An indefinite and general charge that an entry is made for speculative purposes does not warrant an order for a hearing. XVIII-20 The local officers may properly reject an application to contest an entry if in their judgment the charge as laid against the entry does not justify a hearing. Affidavit of, setting forth "upon information and belief that said homestead entry was not made in good faith, but was made for the purpose of speculation and sale," states a cause of action, and is sufficient to put the defendant on notice of the charge to be met. XXI-211 May be dismissed and the entryman allowed to submit the requisite supplemental proof in support of his entry where the charge as laid is not supported by the evidence and the entryman's good faith is apparent. XI-246 Must fail if the charge as laid therein is not established by a preponderance of the evidence. XI-75; XVII-129 Where the charge as laid fails, the contestant can not insist on a judgment of cancellation for some default not charged; and where rights of third parties are not involved and bad faith is not manifest the government will not insist upon forfeiture. XIII-527 Failure of the specific charge leaves the issue as between the entryman and the government. IX-327 The dismissal of, on the failure of the specific charge, does not relieve the entryman from the consequences of his non-compliance with the requirements of the law. XVII-452 Not material that affidavit of, was executed before a person that sworn to before an attorney of record in the case. Affidavit of, not invalidated by omission of venue. XIII-121 V-12 |