cision; but the seventh section of the act of March 3, 1891 (26 Stat., 1095), provides:

That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the homestead, timber-culture, desert-laud, or pre-emption laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entrymau shall be entitled to a patent conveying the land by him entered.

More than two years have elapsed since the final receipt No. 823 issued to said Stella G. Robinson in this case; no protest or contest has been filed, and, accordingly, the decision of your office is hereby reversed.

DESERT LAND ENTRY-ACT OF MARCH 3, 1891-TRANSFEREE.
JOSEPH S. TAYLOR.

Fraud on the part of the entryman will not defeat the confirmatory provisions of section 7, act of March 3, 1891, where the entry is allowed in the absence of any adverse claim, and the land is subsequently, and prior to March 1, 1888, sold to a bona fide purchaser for a valuable consideration, and fraud on the part of such purchaser is not found.

Acting Secretary Chandler to the Commissioner of the General Land Office, April 17, 1891.

I have considered the motion made by attorneys for Joseph S. Taylor, entryman, and J. M. Carey and brother, transferees, for a further consideration of desert land entry by said Taylor final certificate No. 356, for S. of SE. of Sec. 22, N. of NE. 1, SW. 1 of NE. 1, and NW. 1 of Sec. 27, E. of NE. and NE. of SE. of Sec. 28, T. 33 N., R. 74 W., Cheyenne, Wyoming.

A further hearing was ordered in this case by my letter of August 5, 1890. The motion now before me is made in view of the legislation contained in the act of March 3, 1891 (26 Stat., 1095), entitled an act to repeal the timber culture law and for other purposes. It is alleged that said entry is confirmed by the seventh section of the act above cited. The record shows that final certificate issued in this case on August 20, 1885, and by warranty deed dated October 23, 1885, said Joseph S. Taylor conveyed the land to J. M. Carey and brother.

The seventh section of the act above mentioned provides that,

All entries made under the pre-emption, homestead, desert land, or timber culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry, and which have been sold or incumbered prior to the first day of March eighteen hundred and eighty-eight and after final entry to bona fide purchasers or incumbrancers for a valuable consideration, shall unless upon an investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the Land Department of such sale or incumbrance.

The special agent of your office reported May 21, 1886, that said entry was made in the interest of the Carey brothers.

At the hearing which took place on said report it was shown that some time prior to date of final proof, Taylor and his associates, who had become financially embarrassed, borrowed a large sum of money from Carey and Brother, bankers, giving as security possession of their personal property consisting of horses and cattle, implements, etc., also of the lands in question, the entrymen agreeing that they would secure the Carey Brothers on said lands if they ever obtained title to the same. The evidence failed to sustain the charge of fraud against the entrymen but in view of the fact that the witness Taylor refused to answer certain questions on cross examination, and as the other entrymen had not testified, a further hearing was ordered for the purpose of obtain ing additional evidence as to the character of the agreement entered into by the entrymen, whether it was in the nature of an agreement for an absolute transfer or whether it was an agreement to furnish security for the money borrowed. No charge of fraud against Carey and Brother was made by the special agent, the charge was that Taylor had made a fraudulent entry, and the additional evidence called for was on the point above indicated.

I am in receipt of an affidavit of J. M. Carey of the firm of Carey and Brother, in which he states that at no time prior to said final entries, did the entrymen agree to make sale of the land; that it was then well understood that the land could not be sold to Carey and Brother; that the possession of the land was a necessary incident to the possession of the cattle, horses, etc., of a stock ranch; that deponent expected that the entrymen would hold the land for his benefit to enable him to realize therefrom what could be so realized in partial payment of the advance made by deponent. That the money advanced by deponent and his firm was advanced in entire good faith with no intent or expectation that they were thereby committing a fraud upon the government or upon any person.

He further states that at any time since the money was loaned they would gladly have reconveyed all the property taken as security, on the repayment of said loan.

From these statements it appears that no fraud was contemplated or committed by Carey and Brother, that the agreement entered into prior to final proof was not an agreement for a transfer of the land but an agreement that the borrower would do all in his power to protect, in the way of furnishing security, the parties who had assisted him in his financial difficulty. Even admitting that this agreement was illegal so far as the entryman was concerned, it did not show fraud on the part of Carey and Brother, who appear to have acted in perfect good faith in the matter of loaning a large sum of money to one in need thereof. The land appears to have been conveyed in good faith for a valuable consideration after issue of final certificate, and whether said convey

ance was in the nature of a mortgage or incumbrance on the land, or an absolute transfer, the entry is confirmed by said act of March 3, 1891, and patent should issue for the same.

Departmental letter of August 5, 1890, is hereby recalled and the papers in the case are herewith returned.

PRACTICE-RE-REVIEW-SECTION 7, ACT OF MARCH 3, 1891.]
JAMES ROSS.

An application for the re-review of a decision will be denied where it does not present any new question of law or fact.

An entry that has been canceled by a decision that became final prior to the passage of the act of March 3, 1891, is not within the confirmatory provisions of section 7, of said act.

Secretary Noble to the Commissioner of the General Land Office, April 22, 1891.

I have before me your office letter of January 14, 1891, transmitting a paper entitled a "motion for stay," filed in your office January 9, 1891, by S. B. Pinney, Esq., attorney in behalf of "the Colonial and United States Mortgage Company, Limited," of London, England, transferee of James Ross, party to commuted cash entry for the NE. 4 of Sec. 12, T. 135 N., R. 51 W., Fargo, North Dakota, which paper your office deemed to be intended as a petition in accordance with the rule laid down in the case of Neff v. Cowhick (8 L. D., 111), reference being had to departmental decision of December 20, 1890, denying motion for review in the case of James Ross.

The decision complained of is published in 11 L. D., 623, wherein the facts and history of the matter in controversy are set forth and need not be repeated herein.

The motion under consideration sets forth four grounds, or more correctly speaking one ground divided into four specifications.

The first specification is to the effect that the departmental decision of December 20, 1890,

is based upon a defect in the application which did not affect the merits and it was error in not granting leave to cure the defect and have the oath made as required by rules of practice within a reasonable time after due notice.

This specification is founded upon a failure, upon the part of counsel, to fully comprehend the departmental decision referred to, for which the department is in nowise responsible. The departmental decision was based upon two grounds, either one of which was sufficient to justify the conclusion reached. The first one was purely and distinctly on the merits as will readily be perceived by the following extract found on pp. 623 and 624:

There is but a single question presented by the motion under consideration, which is stated by the attorneys representing the motion, to be: "Did not the com

pany by virtue of the mortgage given by Ross to them, acquire some interest in the premises?" This question was passed upon in the opinion sought to be reviewed, at least so far as the same is material. That a transferee or mortgagee is injured by the decision is no ground for review, as his rights are in no sense other or different from those of the entryman. A. A. Joline (5 L. D., 589); Chas. W. McKallor (9 L., D. 580).

If the showing made by the transferee would not entitle the entryman to be heard on review, the application must be denied. The entryman appeared and hotly contested every point therein, and nothing could be gained by going over the same ground at the instance of the transferee.

The only conclusion that could reasonably be deduced from the language used in this extract, would be adverse to the transferee.

The second specification is founded upon the same assumption as the first. The third is based upon the mistaken assumption that Rule of Practice 78, as applied in said departmental decision, in effect deprives the Secretary of the Interior of his supervisory authority conferred by law. Said rule was simply cited in said case, and no construction placed upon it that would or could in any way control, limit, or affect the supervisory authority of the Secretary.

The application of Rule 78 to that case could not have resulted injuriously to the transferee, as fully appears from the fact that the decision would have been the same in any event. I am convinced that the application of said rule to the case was proper. The Rules of Practice are designed to facilitate the business of the Department and further the ends of justice. The wisdom of having rules is too apparent to admit of discussion. The requirement, that a party who is seeking to have a re-hearing, or review, shall furnish evidence that his motion is made in good faith and not for the purpose of delay, seems to be eminently wise and proper.

There is no new question presented by the motion under consideration, either of law or fact, not previously considered or involved in the case, and it must, therefore, be denied. Neff v. Cowhick (8 L. D., 111); Spicer v. N. P. R. R. Co. (11 L. D.,349); Reeves v. Emblen (11 L. D., 480). On the 8th day of April, 1891, Ross and his transferee filed in your office an application for the issuance of a patent for said tract of land, which was transmitted by your letter of April 13, and has been considered with the motion for stay. The application for a patent is based upon the allegation that Ross' entry is confirmed by the seventh section of the act of March 3, 1891. A duplicate receiver's receipt, dated November 22, 1881, is attached to said application.

In order to pass upon this question, a brief re-statement of the record seems to be necessary.

In August, 1886, your office rejected Ross' final proof, and held his entry for cancellation. August 4, 1888, your office decision was affirmed by the Department. A motion for a review of said departmental decision was filed by Ross and, on the 12th day of February, 1890, it was denied. Afterwards The Colonial and United States Mortgage Com

pany, Limited, of London, England, transferee of Ross, applied to your office for an order for new publication and submission of new proof by said transferee.

This application your office refused on the ground that as a final decision had been rendered by the Department, and the case closed, your office had no jurisdiction in the premises. Thereupon the transferee made an application for a writ of certiorari which was denied by the Department on the 19th day of February, 1890. In October, 1890, the transferee filed a motion for a review of the departmental decision denying said writ of certiorari, which motion was denied by the Department on the 20th day of December, 1890. On January 9, 1891, the "motion for stay," considered herein and denied, was filed.

The final judgment of the Department against Ross' entry was rendered on the 4th day of August, 1888. The several motions for review and proceedings had with a view of securing a reversal of that judg ment have all been decided and disposed of in such a manner as to leave said judgment undisturbed from the date of its rendition to the present time. Said judgment was in full force at the date the act of March 3, 1891, was passed. The only question presented by the motion for a patent is, whether under this state of facts, the entry in question is confirmed by the seventh section of said act. If said entry is confirmed by said act then, as a matter of course, the entryman is entitled to his patent, otherwise his application must be denied.

From a careful examination of section seven of the act of March 3, 1891, I am convinced that it does not in terms or by implication, confirm an entry so canceled prior to its passage. The application for a patent is, therefore, denied.

RAILROAD GRANT-INDEMNITY SELECTION-SETTLEMENT RIGHTS.

SAWYER v. NORTHERN PACIFIC R. R. Co.

A railroad indemnity selection, made in conformity with the order dispensing with the requirement of a specified loss, is legally made, and while of record excludes the acquisition of settlement rights on the land included therein; and an application to make pre-emption filing for land thus selected at date of settlement, must be rejected, where the company has previously thereto designated the specific loss.

Acting Secretary Chandler to the Commissioner of the General Land Office, May 1, 1891.

The case of Edward C. Sawyer v. The Northern Pacific Railroad Company is here on appeal of the former from your office decision of April 17, 1889, rejecting his application to file a declaratory statement for the NW. of Sec. 11, T. 147 N., R. 53 W., Fargo, Dakota.

From the record it appears that this land is within the fifty mile indemnity limits of the withdrawal upon definite location for the Northern Pacific Railroad Company, ordered June 11, 1873.