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II. AGRICULTURAL COLLEGE SCRIP.
Application of Agricultural College Scrip to Pre-emptions.
July 22, 1870.
GENTLEMEN :-In the act of Congress approved July 27, 1868, U. S. Statutes, vol. 15, page 227, it is declared:
"That in no case shall more than three sections of public land of the United States be entered in any one township by scrip issued to any State, under act approved July second, eighteen hundred and sixtytwo, for the establishment of an Agricultural College therein."
And the act of July 1, 1870, is to the following effect: (Part II., No. 18),
These two acts must now be taken together, and construed accordingly. Therefore :
1st. The said act of 27th July, 1868, is held to be still in force, to the extent of restricting ordinary scrip locations, not pre-emptions, to three sections in one township, with the interdict of not exceeding one million acres in any one State, as heretofore allowed, confining each selection to a technical quarter section.
2d. By the amendatory act the restriction is removed, so far as relates to pre-emption entries; and the scrip may be received in payment of such entries, without limitation as to the quantity located in a township, or in any one State.
3d. The allowance, by said act of July 1, 1870, of such payment, "in the same manner and to the same extent as is now authorized by law in case of Military Bounty-Land Warrants," will authorize the application of the same rule in each case; and you will be guided by your instructions in warrant locations in payment of pre-emptions, in adjudicating claims under this act.
4th. The scrip may be located, in pre-emption entries, on any tract forming a compact body not exceeding 160 acres, though not embraced in a technical quarter section.
5th. An inconsiderable excess, not sufficient to invalidate the preemption claim, should be paid for with cash, agreeably to the rule and practice in warrant locations.
6th. Double minimum land must be treated as in case of a warrant; payment in cash being required to the amount of $1.25 per acre, where scrip is offered in part payment for such lands.
7th. The interdict in the last proviso of the 3d section of the act of 28th September, 1850, vol. 9, page 521, forbidding the location of warrants upon the improvements of actual settlers, applies to locations under this act.
These locations will be entered in your monthly abstract of agricultural scrip locations in regular order, with special notes on each abstract, and on the papers in each case, referring to such locations as pre-emptions. Very respectfully,
REGISTER AND RECEIVER.
JOS. S. WILSON, Commissioner.
NOTE. As the Agricultural College Scrip heretofore issued has been extensively counterfeited, purchasers are cautioned against imposition from
It is suggested that, by proper care in purchasing from none but responsible parties, well known to the pre-emptor, and in all cases requiring a receipt for the consideration paid, accompanied with a guaranty for indemnification in case the scrip shall prove counterfeit, the settler may in most cases protect himself from loss in the use of the scrip.
JOS. S. WILSON, Commissioner.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE, Washington, D. C., February 8, 1872. GENTLEMEN:-By circular of July 22, 1870, you were instructed in regard to receiving Agricultural College Scrip in payment for preemption claims, under the act of July 1, 1870. (Part II., No. 18.)
On the 29th ultimo, the Hon. Secretary of the Interior decided that said Scrip may also be received in commuting homestead entries under the 8th section of the act of May 20, 1862, and you will receive it in such cases accordingly.
The instructions contained in the circular mentioned, regarding preemption scrip locations,' will apply to the locations contemplated in commuting homesteads; but you will indicate the latter on the monthly abstract of scrip locations, and on the papers issued therefor, by special notes, referring by number to the commuted homestead entry.
Very respectfully, WILLIS DRUMMOND, Commissioner.
GOVERNOR OF TEXAS.
A joint resolution of the State of Texas authorized the Governor to receive a certain scrip and "sell the same." The Governor executed a power of attorney to the Secretary of State of Texas, and authorized him to receive and sell.
Held-That the Secretary of State had no power to sell.
DEPARTMENT OF JUSTICE,
OFFICE OF ASSISTANT ATTORNEY GENERAL,
SIR-I have considered the question submitted by the letter of the Commissioner of the General Land-Office, and relating to the power of the Governor of Texas to authorize the Secretary of State to make sale of the Agricultural College Scrip belonging to the State of Texas.
The joint resolution of the Legislature of said State authorizes the Governor "to receive the land scrip provided to be issued by said act and to sell the same."
The resolution reposes a personal trust and confidence in the Governor, and does not authorize him to substitute another; and I am of opinion that he cannot delegate that trust to another.
Lyon v. Jerome, 26 Wend. 485. Bocock v. Pavey, 8 Ohio State, 210. Lynn v. Burgoyne, 13 B. Mon. 215.
I think that a sale made by the Secretary of State should not be recognized by the land-office.
WALTER H. SMITH, Assistant Attorney-General.
HON. C. DELANO, Secretary of the Interior.
III. PRIVATE LAND, PORTERFIELD AND VALENTINE
Scrip, not specially made so by provision of law, is assignable, and private
A certificate of entry is full evidence of title to the land entered.
Washington, D. C., Aug. 4, 1875. SIR-I have considered the appeal taken in behalf of the heirs of John Lynde from your decision of June 25, 1873, in the matter of their claim to certificates of location under the sixth section of the Act of June 22, 1860, (12 Stats., 85.)
You held, substantially, that the heirs were entitled to such certificates for 9,740 acres of land, to be issued in the names of the original confirmees, "and to their legal representatives," but that no entries would be permitted except in the names of said original confirmees. From this decision appeal has been taken to the Department, and two questions arise for consideration, viz:
1st. Is this scrip assignable?
2d. Can entries made with it be patented?
Since the appeal now under consideration was filed, the claimants have accepted the scrip in the form prescribed by you, but still insist that the same is assignable; that entries can be made in the name of the assignee, and that such entries when made can be patented.
Independently of the abstract question whether scrip issued in the usual form, and locatable on unappropriated public land, is, without a special provision of law to that effect, assignable, I am clearly of the opinion that the scrip issued in this case is locatable under its terms by any assignee of the persons named therein. It is issued to certain specified persons and their "legal representatives." I can see no rea
son whatever why a "legal representive," properly shown to be such, may not locate the scrip exactly the same as if he were specifically named therein.
The scrip runs to A. B. or some person to be identified as a "legal representative" of A. B. A. B. may use the scrip in his own name, or any one properly identified as his "legal representative" may use it in his own name.
The term "legal representative" embraces a representative by contract, a grantee, or assignee, as well as a representative by operation of law, (Hogan v. Page, 2 Wall., 607; Carpenter v. Rannells, 19 Wall., 145.)
In this view of the law, assignees of this scrip should be recognized as legal representatives, and allowed to locate the same exactly as though they were specifically named therein.
The first abstract question raised by the appeal, viz: Whether scrip, not specifically made so by provision of law, is assignable, I have no hesitation in answering in the affirmative. Scrip of this character is intended by law to compensate the donee for loss of a valuable interest or estate in lands, ofttimes for a vested interest protected by the laws of nations, the laws of the United States, and by treaty obligations. The original right, under the fundamental principles of both civil and common law, was alienable. Scrip represening the original estate is a valuable right, and for like reasons is assignable.
The uninterrupted current of modern decisions tends o establish the principle that any valuable interest in real estate under our public land system, even if inchoate and imperfect, is assignable in the absence of express legislative prohibition. (Threadgill v. Pintard, 12 How., 24; Sparrow v. Strong, 3 Wall., 97; Davenport v. Lamb, 13 Wall., 418; Lamb v. Davenport, 18 Wall., 307; Myers v. Croft, 13 Wall., 296.) In the last cited case it is expressly so held. In this case, speaking of a pre-emption right, an inchoate, imperfect, and defeasible interest, the courts say: "This right was valuable, and, independently of the legislation of Congress, assignable."
Following these authorities, I have for some time uniformly held that valuable rights acquired under our public-land system were, in the absence of express legal prohibition, assignable, (* Wilson v. C. & O. R. R. Co., Sec.'s Dec'n Feb. 17, 1873; 2 Opin., A. A. G., p. 76, claim under Section 7, Act of July 23; 1866; Heirs of Were v. R. R., Sec's Dec'n March 27, 1873, claim under Joint Resolution of April 10, 1869; see Heirs of Coleman Fisher, Sec.'s Dec'n, Feb. 16, 1874, claim under Act of May 14, 1834.)
The case under consideration seems nearly identical with that which arose under the Act of July 4, 1835, and was referred by the Secretary of the Treasury to Attorney General Butler for his opinion. The Attorney General in his opinion (3 Opin., 355) says: "In my opinion the individuals who appeared as claimants before the Commissioners, and who have obtained their favorable decisions, are the persons who are to be recognized at the General Land Office as the confirmees under the Act of July 4, 1836, and that the same persons, and those deriving title from them by descent or purchase, are also the parties who are entitled to locate under the second section of that Act."
Upon full and careful consideration, I am clearly of the opinion that this scrip is assignable, and when assigned may be located in the name of the assignee; and I so hold, reversing in this respect your decision now under consideration.
With reference to the second question raised, I agree with you that entries made with this scrip, as the law now stands, are not patentable. The rule that a patent cannot issue except in pursuance of some explicit provision of law is too well settled, and has been too long and uniformly followed by the Department, to now admit of question.
I am also of opinion that in this case a patent is not absolutely necessary for the full protection of the claimants, inasmuch as a certificate of entry in the name of the assignee will be evidence of full relinquishment by the United States of all her interests in the land located. I return the papers transmitted with your letter of September 17, 1873. Very respectfully, C. DELANO, Secretary.
To the Commissioner of the General Land-Office.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Washington, D. C., October 8, 1874.
GENTLEMEN: The act of Congress approved June 22, 1860, entitled "An Act for the final adjustment of Private Land Claims in the States
*No. 457. †No. 561.
of Florida, Louisiana, and Missouri, and for other purposes," Statutes, vol. 12, page 85, provides, in its 6th section, "That whenever it shall appear that lands claimed, and the title to which may be confirmed under the provisions of this act, have been sold in whole or in part by the United States prior to such confirmation, or where the SurveyorGeneral of the district shall ascertain that the same cannot be surveyed and located, the party in whose favor the title is confirmed shall have the right to enter, upon any of the public lands of the United States, a quantity of land equal in extent to that sold by the Government: Provided, That said entry be made only on lands subject to private entry. at one dollar and twenty-five cents per acre, and as far as may be possible in legal divisions and sub-divisions, according to the surveys made by the United States."
In pursuance of these provisions, scrip has been issued by this Office in cases arising under the 11th section of said act, according to blank form annexed, marked A, the several certificates of scrip so issued representing various quantities of land, according to the circumstances of the respective cases in which issued.
Scrip of this character may be located in legal sub-divisions on any public lands in your district which may be subject to sale at private entry at $1.25 per acre. Parties applying to you to locate this scrip may do so in full satisfaction thereof, or if it call for more than the quantity of one of the smallest legal sub-divisions, they may locate it in part satisfaction thereof.
You will require the party to present an application according to form B, annexed. If the location be in part satisfaction of the scrip, the blank to be used will be modified by writing after the word "certificate," in the party's application, the words "in part satisfaction thereof."
You will, then, if no objection appear, allow the location desired, fill up accordingly, and sign the certificate made a part of form B; also properly fill up the heading thereof, inserting the number of the certifi cate of location, the Register and Receiver's number, the date of the decree, and the claim for which the certificate of location was issued, for which blanks are left in the form.
You will then issue duplicate certificates according to form C, annexed, properly interlining the same to indicate that the location is in part satisfaction of the scrip, one of which you will deliver to the party, and the other the Register will retain on his files as a record.
The location effected, you will endorse on the scrip to be retained by the party a certificate to bear the current date and to set forth the fact that it has been located in part satisfaction, giving the description and area of the tracts located therewith, which, if it be the first location made with the same certificate of scrip, you will mark as "Endorsement No. 1." The party may locate the remainder of the quantity of land called for in the scrip at any other time at your office, or at any other District Land-Office where there may be lands subject to sale at ordinary private entry at $1.25 per acre.
If the scrip be found to have been previously located and endorsed, the certificate made thereon will be marked as " Endorsement No. 2," or by other number, as the case may be. When the scrip is located in full satisfaction, the application of the party in the form B will be modified by writing after the word "certificate," the words "in fuli satisfaction thereof," and in that case the scrip will be surrendered to you by the party. The duplicate certificates to be issued, form C, will,