No specific act of settlement, after restoration of the land, is required of a settler whose everyday life can be considered a compliance with the law. But such settler cannot embrace in his claim land not in his possession on which are the improvements of another who, like himself, has settled without the protection of law. A homestead entry made on the day of restoration, of a tract not in the possession of the preemptor, is a legal appropriation of the land as soon as it is subject to entry(*). The land to which a claimant may have a right of possession, although for some valid reason not the actual possession, must be land to which he can assert a valid claim under the preemption law. A trespass upon the public lands will not be sustained under the decision in Atherton vs. Fowler; nor will the claim of a person who is qualified and has complied with law be subject to defeat in favor of an unlawful occupant() Where a party has made settlement and filing, and is thereafter sentenced to the penitentiary for a period which will expire after the time in which proof and payment should be made, such proof and payment may be made by a guardian or trustee(*). e. SALE AND FORFEITURE. Where an incomplete pre-emption claim is sold or abandoned, the right is forfeited, and where filing, proof and payment are not made as required, the claim is liable to forfeiture; but a sale should not be held to work a forfeiture unless it is voluntary, and made while the party is in possession of his mental faculties(). A written contract for the sale of growing trees which the purchaser was to cut and remove as soon as the vendor obtained patent is a contract prohibited by the pre-emption law(*). A homestead or pre-emption settler is permitted to cut trees upon his land, for building, fencing, repairs and firewood. Should there be no trees growing upon his land, he may cut trees rowing upon the mountain slopes, but only for domestic uses. A verbal sale when accompanied by delivery of the land forfeits the pre-emption right('). Parole evidence is admissible to defeat a deed or written contract on the ground of illegal consideration, duress or fraud. A deed absolute on its face may be shown to be a mortgage(s). Mortgages released or otherwise are no bar to the completion of a pre-emption claim. There is no forfeiture declared because of a failure on the part of a pre-emption settler to make proof and payment for unoffered land within thirty months from the time when he should have filed his declaratory statement -provided no adverse settler has made settleinent on the land and complied with the law(h). The question of abandonment is discussed at considerable length in Johnson vs. Graybill, Land Owner, Vol. 2, p. 100. II. Pre-emption Homesteads. When an individual has made settlement on a tract and filed his pre-emption declaration therefor, he may change his filing into a homestead, if he continues in good faith to comply. with the pre-emption laws until the change is effected; the time during which the party has resided upon and claimed the land as a pre-emptor will be credited upon the period of residence and cultivation required under the homestead laws. In so doing he is required in his first homestead affidavit to set forth the fact of a previous pre-emption filing, the time of actual resi dence thereunder, and the intention to claim the benefit of such time. In making final proot on his homestead entry he is required, in addition to the usual affidavit and proof, to make the "pre-emption homestead affidavit," below: (*) Corrigan vs. Ryan, Land Owner, Vol. 4, p. 42. (b) Marks vs. Bray, Land Owner, Vol. 8, p. 139 ()J. T. Benson, Land Owner, Vol. 6, p. 108. (4) Catala vs. Austin et al., Copp's Public Land Laws, p, 313. (e) Webster vs. Sutherland, Copp's Public Land Laws, p. 312. Instructions, Land Owner, Vol. 1, p. 163 (f) Hudsonpiller vs. Queen, Copp's Public Land Laws, p. 312. (8) Philip Waldron, Copp's Public Land Laws, p. 313. (b) Shreves vs. Eaton, Land Owner, Vol. 5, p. 165. Larson vs. Weisbecker, Land Owner, Vol. 9, p. 60 PRE-EMPTION HOMESTEAD AFFIDAVIT. To be used in making final proof in cases where pre-emption filings have been changed to homestead entries under the acts of March 3, 1877, and May 27, 1878.) having changed my pre-emption declaratory statement No. I, filed the day of 18, alleging settlement the day of 18, for the -section No. in township No.-, range No., to homestead entry original No. district of lands subject to entry at, under the acts of Congress approved March 3, 1877, and May 27, 1878, do solemnly swear that I have never had the benefit of any right of pre-emption under section 2259 of the Revised Statutes of the United States; that I have not heretofore filed a pre-emption declaratory statement for another tract of land; that I was not the owner of three hundred and twenty acres of land in any State or Territory of the United States at any time during the above-mentioned period of settlement under the pre-emption statutes; that I did not remove from my own land within the State of to make the settlement above referred to; nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my exclusive use or benefit; and that I did not, during the period of pre-emption settlement above mentioned, directly or indirectly, make any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which I might acquire from the Government of the United States would inure, in whole or in part, to the benefit of any person except myself. to before me this of the Land Office day of - 18-. do hereby certify that the above affidavit was subscribed and sworn A person in possession of a valid pre-emption claim may at any time commute it to a homestead, and in so doing his right will relate back to the date of his settlement, to the exclusion of intervening adverse claims (*) Where a party did not change his pre-emption filing to a homestead entry, but voluntarily relinquished the same and made timber culture entry subsequent to the relinquishment of his pre-emption right, the claimant cannot be allowed the benefits of the act of May 27, 1878, in computing the five years' residence required from the date of settlement, as alleged in his relinquished pre-emption filing(). The right to transmute a pre-emption filing to a homestead entry is one belonging only to the party making the filing. Even in her own name, acting independently of the pre-emption filing of her husband, a widow should not be allowed to make a homestead on land embraced in said filing, until it shall appear satisfactorily that the heirs do not intend to prove up. A widow cannot be considered an heir unless declared such by special law of the State("). Where applications to transmute from pre-emption filings to homestead entries, though made prior to March 3, 1877, are not acted upon until after the approval of this act, such act is held to apply, and the time during which the parties complied with the pre-emption laws is applied on the homestead entry (d). The act of May 27, 1878, is retroactive in such cases. There is nothing in the law of March 3, 1877, authorizing the pre-emptor to change his filing to a homestead entry with credit for the time he has resided on the land claimed, which requires his personal attendance at the local office (*). This also applies to the act of May 27, 1878. An application to transmute a pre-emption filing to a timber culture entry cannot be allowed(). Å qualified party may transmute his pre-emption filing to a homestead entry, as to the land not in dispute; and where, as in this case, both parties settled prior to survey and have valuable improvements on one legal subdivision or lot, such lot may be entered jointly(8) LATE RULINGS UNDER THE PRE-EMPTION LAWS. The "three months" time required within which pre-emption filings on unoffered land may be made, is three calendar months, not ninety days(1). The fact that a party knew his first filing to have been invalid can make no difference. To exhaust his pre-emption right his first filing must have been valid. One whose first filing was invalid for any reason can make a second filing entirely distinct from the first, which could neither give, nor take from him, any rights(i). In the absence of adverse rights, a party may file a second declaratory statement for the same Facts(). (*) Ross vs. Sinclair, Copp's Public Land Laws, p. 318. (b) E. L. Crandall, Land Owner, Vol. 5, p. 180. A pre-emptor cannot make a second filing on the same tract of land. Reverses Phelps de cision on previous page(*). Existing entries are a bar to other entries or filings not based upon prior settlement(). A pre-emption filing is no bar to a subsequent filing or other entry by another person of the same tract. In the absence of an adverse claim of record, a pre-emption settler upon unoffered land may after an absence, return to the land, and, if good faith is shown, make entry thereof. A stranger to the record cannot contest an unexpired pre-emption filing(©). The filing of a declaratory statement does not constitute a location or entry(a). Disposal means alienation of title. A pre-emption filing may be received for land claimed as swamp and overflowed("). A contest against a pre-emption filing is not recognized, and no preferred right is conferred by the Act of May 14, 1880, for procuring the cancellation of a filing.(′). Between two pre-emption claimants, both in default as respects filing, the one who first gives notice of his claim makes the entry (8). Where abandonment is proved as a result of contest, the filing of the party in default should be canceled as to his entire claim, and not merely to the part in controversy(1). Where the government alone is concerned, the land laws will be liberally construed, but where adverse rights are involved, strict construction of the statute will be maintained. A pre-emption filing made prior to the date of alleged settlement, is not in accordance with the pre-emption law(1). Where the pre-emptor's affidavit is taken before the clerk of a court of record, a reasonable time for transmission thereof should be allowed prior to entry(3). The affidavit may be sworn to before the Probate Judge if he is ex officio clerk of his own court. A statement to that effect should follow his signature to the jurat.(*). The fact that the declaratory statement of a pre-emption settler, although received by the local officers within the prescribed time, is not recorded by them until the expiration of thirty days does not invalidate his claim, the proof of receipt being sufficient. The fact that a settler under the pre-emption law inadvertently built his house one hundred feet from his claim, is not an evidence of bad faith, if he, upon discovering his mistake, erects a dwelling within the boundaries of his claim(1). Pre-emption filings may be relinquished by the claimants, in writing, filed with the register and receiver of the proper district land office, or the relinquishment may be executed by the claimant on the back of the declaratory-statement receipt(m). A pre-emption settler has the legal right to relinquish his entry without the consent or sig. nature of his wife("). Where lands are in the actual possession of a party, who has settled upon, improved and fenced the same, no right thereto can be acquired under the pre-emption laws by another who takes forcible possession. Where the lands are not inclosed by a fence, and the first settler is disqualified, or has taken no lawful steps to acquire title, a subsequent settler, who enters without force or intrusion upon the actual possession of the former, is not a tresspasser qu. cl., and may acquire title to the lands under the pre-emption law(°). A pre-emptor must have all necessary qualifications at date of settlement(P). (a) J. B. Raymond, Land Owner, Vol. 10, p. 395. (1)Field vs. Black Land Owner, Vol. 10, p. 195. Lynch vs. Merrifield, Land Owner, Vol. 10, p. 379. (i) Hull vs. Hawkins, Land Owner, Vol. 6, p. 191. The inhibition of the pre-emption law, that a person shall not remove from his own land in the same state or territory to reside on the public land, applies to a person who removes from tract of forty acres located within the limits of a town, and the former ruling of the office, egarding the removal from a town lot, to that extent is modified. Parties of record who failed to appear at the hearing after due notice, decided to have forfeited their rights(*). A minor, if single, cannot legally file as a pre-emptor(b). A filing and settlement before declaration of citizenship are of no legal effect. But where no adverse claim intervenes prior to declaration of citizenship and a subsequent settlement the original filing should not be canceled(). An alien can claim nothing by a settlement prior to his declaration to become a citizen(a). The naturalization of a widow by marriage to a citizen naturalizes her minor children, though of alien parentage(*). Where a pre-emptor is imprisoned, his wife must strictly comply with the law(). A divorced woman cannot claim settlement as a feme sole during coveture, and it cannot date back prior to divorce(). Where a party has paid for land, though no deed has passed, he is the owner of such land, and cannot remove therefrom to become a pre-emptor of public land(1). A person who owns lands in trust for others is not thereby disqualified as a pre-emptor(1). The tenant of a railroad company cannot base a pre-emption or homestead claim upon occupancy of land included in the railroad right of way(3). A party is proprietor of land who has the legal title(*). After the expiration of a declaratory statement, there is no legal settlement, because there is no application. The pre-emptor's right to reserve the land or that of any one claiming through him, is forfeited to the first legal applicant, by the failure to pay for it(1). A pre-emptor intending at settlement to take a quarter-section can claim the whole by perorming acts of settlement upon one 80-acre tract while the other is enclosed and cultivated by another person(m). A pre-emptor must do some act to connect himself with the tracts claimed. Mere intention is not sufficient. The unauthorized enclosure of several hundred acres, including such tracts, is not the inception of a pre-emption right.(") Settlement is the sole basis of the pre-emption right. Land not included in the settlement cannot be embraced in the claim. A declaratory statement is the declaration of an intention to claim, and not the claim itself. A declaratory statement not based on settlement is void. Land not reduced to possession is open to other settlers(°). Settlement is a personal act, and can date only from the time the party went upon the land. The purchase of a prior settler's improvements does not transfer the vendor's date of settle ment(P). For other rulings on settlement, see late rulings under the homestead laws. A formal deed is not necessary for the conveyance of improvements on public land, but that a verbal sale followed by possession and consent is sufficient. In determining good faith, it is immaterial whether a person purchases valuable improvements already on the land, or whether he makes them after his settlement(a). (*) White vs. Warren, Land Owner, Vol. 7, p. 164. () Gardner vs. Snowden, Land Owner, Vol. 10, p. 173. (*) State of California vs. Dougherty, Land Owner (1) Alice Gillespie, Land Owner, Vol. 11, p. 73. All pre-emptors on public land withdrawn for railroads should file and make proof as in other cases, but a failure to so comply within the required time works no forfeiture in the absence of another settler on the same tract("). A pre-emptor is not forbidden to settle on lands that are likely to become centres of population, or near a town or village("). A settlement upon land occupied and improved by another, is mere naked intrusion, and in such a wrongful attempt to seize the fruits of another's labor, there can be no bona fide claim of right, whatever. H. entered into an agreement with a railroad company to purchase a certain tract, on certain conditions, obligating himself that, until full payment of purchase money, he would permit no waste to be made, or wood to be cut, etc., etc.; the conditions were met, and deeds of conveyance delivered by the company to one M., to whom H. was indebted, and who held a mortgage on the land. An agreement of sale was effected between H. and M., which was subsequently consummated, when H. conveyed by deed absolute all his right, etc., to the land. On the same day, M. executed a lease to H. for the term of one year, conditioned that H. or his assigns might, at any time during the continuance of the lease, purchase the land for a stated sum. Held, That, even though the re-purchasing clause in the lease creates a defeasance in the deed, and that considered in the same connection constitutes nothing more than a mortgage, it does not disqualify H. as a pre-emptor, for the mortgagee is the owner, and the disqualifying clause in the pre-emption law refers directly to the ownership of land by the pre-emptor("). Acts of settlement performed while the land is embraced in a homestead entry give a claimant no legal status. After cancellation of the homestead entry, the rights of two pre-emptors must be determined by their settlement and not by their residence. The first bona fide settler takes the land in dispute, if followed within a reasonable time by his residence thereon("). A pre-emption right is not a vested right against the United States, but is simply a prefer ence right among settlers, should the government sell the land involved. Not until entry and payment have been made does the pre-emptor acquire a vested right. The preference right may be waived or lost(e). The purchase of a dwelling by a pre-emptor is the same as the erection of one. The purchase of improvements is evidence of good faith when followed up by inhabitancy after('). A pre-emption claimant at time of making final proof could not establish a valid claim for a quarter-section or any part thereof, unless his dwelling-house, his actual residence, was on some part of that quarter-section(8). A bona fide pre-emption claim should not be rejected because the claimant's house was by mistake beyond the boundary lines(h). The statute requires inhabitancy on the land pre-empted, and this means actual residence or a home(1). Intentions are not the equivalent of actual residence and improvements; but continuous compliance with all the requirements of the pre-emption law is essential, and failure therein will not be overlooked except under urgent circumstances, and for controlling reasons(1). All absences which do not impeach a pre-emptor's good faith are permissible. He who sleeps on his claim in a pen or in the open air, intending to erect a habitable dwelling as soon as his means or occupation permits, maintains a satisfactory residence(*). Where the acts of settlement performed by a pre-emptor are of a character to evidence his good faith, continuous residence on the land is not essential(1). (4) Central P. R. R. Co. vs. Baker, Land Owner, Vol. 9, p. 82. (1) Cragin vs. Melbarg, Land Owner, Vol. 10, p. 168 (5) Hannah vs. Gerard, Land Owner, Vol. 10, p. 229. (b) Plummer vs. Jackman, Land Owner, Vol. 10, p. (4) Arnold vs. Langley, Land Owner, Vol. 9, p. 76. 71. (*) Hannum vs. Linton, Land Owner, Vol. 6, p. 173. (d) McAvinny vs. McNamara, Land Owner, Vol. 10, P. 274. (1) Boyse vs. Goss, Land Owner, Vol. 8, p. 159. 39. () Rosanna Kennedy, Land Owner, Vol. 10, p. 152. (1) G. J. Roskruge, Land Owner, Vol. 10, p. 363. |