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ing. Under the general rule that pending an application to enter, application by another to enter the same land should not be allowed, this Department, in the case of Sarah Renner, (2 L. D., 43,) held that an application to enter should not be entertained pending an application for re-instatement, and in the case of Johnson v. Gjevre (3 L. D., 157), it was held that a pending application to amend a homestead entry reserves the land from any other appropriation until the application is disposed of.

Applying the doctrine thus enunciated to this case, it becomes apparent that the local office erred in allowing Moat to make homestead entry for the tract in question, since at the time it was made said tract was for the time being at least practically withdrawn by the application of Florey to amend. For this reason, and because the record of Florey's application was notice to Moat, I should, were the facts herein recited all that relate to the land described and to the parties interested therein, direct the cancellation of Moat's entry. I find, however, from an abstract from the records of the local office, certified by the register, and filed by the attorney for Moat, that certain proceedings in contest are pending, to which several of the persons mentioned herein, including Florey and Moat, are parties. As one or the other of these contests may result in clearing the record on the ground of failure to comply with the law in the matter of residence or cultivation, and thus remove the complication, without injury to any one who has acted in entire good faith, I decide that the homestead entry of Moat be allowed to remain of record pending the contests mentioned, in order that should it be devel oped by said contests that no one else has a superior right to the land, he may then hold it under his said entry, subject to his compliance with the requirements of the law.

The motion for review and revocation of my decision of August 27, 1885, is accordingly denied.

SUIT TO SET ASIDE PATENT.

MARY YANCEY.

As the applicant herein may assert her right in the courts, and the government has no interest in the land involved, the application for the institution of suit to set aside certain patents is denied.

Secretary Lamar to Commissioner Sparks, February 3, 1886.

I am in receipt of your office letter of the 21st ultimo, submitting for my consideration the letter of the attorney of Mrs. Mary Yancey, asking "that proceedings be instituted to set aside patents, which appear to have been inadvertently issued February 1, 1860, on Centre, Alabama, cash entries No. 21,942, Richard Taylor, E. of NW. and SW. † of NE. of Sec. 7, T. 19, R. 13, and No. 21,949, James H. Parmer, for N. of SE. and SE. † of SW. †, same section, which entries are in conflict

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with pre-emption cash entry No. 22,633, Mary Yancey, NW. 4 of SE. and SW. of NE. of said section 7.

It appears that the entries of Taylor and Parmer were allowed as private entries under the act of Congress, approved August 4, 1854, known as the "Graduation act," in face of the apparent prior right of Mrs. Yancey, who had filed her pre-emption declaratory statement upon the tracts claimed by her December 17, 1858, and made entry of the same on December 17, 1859.

It may be, as stated in your letter, that the issue of patents to Taylor and Parmer was erroneous, but it is not evident what interest the United States now has in the premises. There does not seem to be any reason why Mrs. Yancey may not assert any legal or equitable right she may have in the land in the courts of the country in her own name. (See Bagnell v. Broderick, 13 Pet. U. S., 436; Brush v. Ware, 15 Pet. U. S., 93; Garland v. Wynn, 20 How., 6; Samson v. Smiley, 13 Wall., 91; Bohall v. Dilla, 114 U. S., 47.)

The Supreme Court in the case of the United States v. Minor, (114 U. S., 233,) say: "If, by the case as made by the bill, Spence's claim had covered all the land patented to Minor, it would present the question, whether the United States could bring this suit for Spence's benefit. The government, in that case, would certainly have no interest in the land when recovered, as it must go to Spence without any further compensation. And it may become a grave question, in some future case of this character, how far the officers of the government can be permitted, when it has no interest in the property, or in the subject of the litigation, to use its name to set aside its own patent for which it has received full compensation, for the benefit of a rival claimant."

The court did not decide that question as it did not properly arise in the case before them.

In the present case, it is clear that the government has no interest in the land, and I see no reason why Mrs. Yancey should not assert her rights in the courts in her own name. The request of her attorney therefore should be denied, and you will so direct.

ALABAMA-ACT OF MARCH 3, 1883.

MARY E. JEFFRAY.

On the cancellation of an entry existing at the date of the passage of the act of March 3, 1883, for land theretofore classed as "coal," such land cannot be disposed of as agricultural until after public offering.

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Secretary Lamar to Commissioner Sparks, February 5, 1886.

I have considered the case of Mary E. Jeffray, on appeal from your office decision of January 21, 1885, rejecting her application to file soldier's declaratory statement for the W. of SE. and W. of NE. 1, Sec. 18, T. 16 S., R. 3 W., Montgomery, Alabama.

On December 15, 1884, Mrs. Jeffray, by her attorney, offered said declaratory statement at the local office. It was rejected under the act of March 3, 1883, (22 Stat., 437,) because the records of the local office showed that said tract was "classed as valuable for coal." The records of your office show that said tract was reported in the lists of 1879 as "valuable coal."

On April 9, 1881, one James D. Lykes made homestead entry for this land, which was canceled November 25, 1884, for abandonment. The attorney for appellant urges that said entry, subsisting at the date of the passage of the act of March 3, 1883, served to except said tract from the operation of that law. I fail to find any grounds for such assertion. Said law enacts that all public lands within the State of Alabama, whether mineral or otherwise, shall be subject to disposal only as agricultural lands; provided that all lands which have heretofore been reported to the General Land Office as containing coal and iron shall first be offered at public sale, and provided further that any bona fide entry under the homestead laws heretofore made may be patented, when the persons making application for such patents have in all other respects complied with the homestead law relating thereto.

In the present case, the lands had been reported to the General Land Office as coal lands prior to the passage of said act; upon the cancellation of said Lykes' entry, they became public lands, and could not be disposed of as agricultural lands until offered at public sale. Such offering had not been made at the time of the application herein, and said declaratory statement was properly rejected. The decision appealed from is accordingly affirmed.

TIMBER CULTURE ENTRY-CONTEST.

SHOEMAKER v. LEFFERDINK.

Where the default is cured prior to the initiation of contest the entry will not be canceled.

Secretary Lamar to Commissioner Sparks, January 30, 1886.

I have considered the case of David Shoemaker v. John H. Lefferdink, as presented by the appeal of the former from the decision of your office dated December 15, 1884, reversing the action of the local land officers' holding that Lefferdink had failed to comply with the requirements of the timber culture law and that his timber culture entry No. 859 of the N. of the NE. 4 of Sec. 24, T. 7 N., R. 5 E., Lincoln land district, Nebraska, should be canceled.

It appears that Shcemaker initiated a prior contest against said entry, charging a failure to comply with the requirements of the timber culture law, and upon a hearing duly had the register and receiver decided in favor of the contestant, which decision was affirmed by your

office and reversed by this Department July 7, 1883, upon the authority of Bartlett v. Dudley (1 L. D., 186), holding that the contestant had no right of contest, because he had not filed a proper application to enter the contested tract. The contestant was allowed the right to initiate a new contest, and on August 10, 1883, filed another affidavit, as set forth in your office decision. A hearing was had, and the local land officers decided in favor of the contestant. Your office, however, reversed their action, as above stated.

One of the reasons assigned for the decision of the register and receiver is, that the entryman was not entitled to any consideration for the six acres planted to walnuts, after the commencement of the first and before the initiation of the second contest. But your office, under the authority of departmental decision in Galloway v. Winston (1 L. D., 169), held that if the defect was cured prior to the initiation of contest, the entry must stand.

An examination of the record discloses no reason for disturbing your decision, and it is accordingly affirmed.

TIMBER CULTURE ENTRY-CONTEST.

SIMS v. BUSSE ET AL.

Where fraud or illegality is relied upon as the ground of contest the allegations thereof should be specifically made.

Secretary Lamar to Commissioner Sparks, January 30, 1886.

I have considered the appeal of Alex. B. Sims from the decision of your office, dated August 11, 1884, dismissing his contest against timber culture entry covering the NW. of Sec. 17, T. 107 N., R. 62 W., 5th P. M., Mitchell land district, Dakota Territory, made by Colon C. Billinghurst on November 4, 1881.

It appears from the record that Sims initiated a contest against said entry on November 12, 1883, alleging that the tract had been repeatedly offered for sale to different persons and that it was then and had been held solely for speculation. January 14, 1884, was set for the hearing in said case, and on the day set for the trial the register and receiver dismissed said contest upon the ground of the insufficiency of the allegation in the affidavit of contest, and Sims appealed. On Feb. ruary 25, 1884, said entry was canceled upon relinquishment, dated October 13, 1883, and Henry W. Busse was allowed, on the same day, to make timber culture entry of said tract. On March 3, 1884, Sims applied to enter the tract in controversy, which application was rejected on account of the entry of Busse, and Sims again appealed.

If the contest affidavit of Sims was insufficient, then, certainly, it should have been rejected by the district land officers and no hearing 1819 L D-24

ordered. It is provided by Section 2 of the timber culture act of Congress, approved June 14, 1878, (20 Stat., 113,) that the applicant shall make affidavit, among other things, "that this filing and entry is made for the cultivation of timber and for my own exclusive use and benefit; that I have made the said application in good faith, and not for the purpose of speculation, or directly, or indirectly, for the use or benefit of any other person or persons whomsoever," and the third section of the same act makes provision for contesting the timber culture entry "after the filing of said affidavit and prior to the issuing of the patent for said land," whenever the claimant shall fail to comply with any of the requirements of said act. Under this section no contest can be initiated until the expiration of one year from the date of the entry, because the entryman has one year within which to comply with the requirement of the law as to breaking. If, however, the contestant alleges that the entry was illegal in its inception, and sets forth sufficient allegations showing wherein the illegality consists, then the Government may and should receive such affidavit and allow the contestant to prove his allegations, and if successful and the entry is canceled, then, under the second section of the act of May 14, 1880, (21 Stat., 140,) the contestant would be entitled to his preference right of entry.

It is not sufficient to allege in the contest affidavit that the entryman "has repeatedly offered said land for sale to different persons and that the same is now and has been held solely for speculation." Such an allegation does not necessarily contradict the affidavit required by the statute. Non constat that the applicant did not make the affidavit honestly, and afterwards by reason of change of circumstances wish to dispose of his improvements and interest in the claim.

If, however, the contestant had alleged that Billinghurst's entry was fraudulent in its inception in this, that it was not made in good faith, but for the purpose of sale and speculation, he may then set out the fact that the entryman had repeatedly offered said land for sale, as inducement to said allegation, and proof of that fact would be evidence proper to consider in support of the allegation that the entry was fraudulent in its inception. Or, when Sims applied to enter, his application should not have been rejected, if at the same time he had offered to contest Busse's entry upon the ground that Billinghurst's relinquishment was made in the interest of Busse, as the result of a fraudulent confederation between them.

If Sims can amend his contest, or application to enter in accordance with the ruling here made, and offers to do so within thirty days from date of notice of this decision, such right should be accorded him. Otherwise your decision will be affirmed.

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