HOMESTEAD-ACT OF JUNE 15, 1880-TRANSFEREE.

ROBERT L. GARLICHS.

A cash entry made under the act of June 15, 1880, and canceled for failure to furnish the requisite proof, will not be reinstated on the application of one who claims as a transferee, but does not trace his title to the entryman, nor occupy the status of a purchaser without notice.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, May 8, 1891.

I have considered the appeal of Robert L. Garlichs from your deci. sion of May 22, 1889, rejecting his right, as transferee of one J. D. Macfarland, involving SW, Sec. 27 T. 3 S., R. 23 W., Kirwin, Kansas, land district to intervene in the case of William Hunter, ex parte, homestead entryman for said tract.

It appears from the record and papers before me that William Hunter made homestead entry for this land on October 22, 1878.

On September 3, 1884, one Loomis presented at the local office a paper purporting to be a power of attorney executed by William Hunter to him authorizing him, "to make final proof under second section of the act of June 15, 1880 upon homestead entry No. 8214 for SW.4, section 27" &c. On presenting this paper, the cash entry was made in the name of Hunter.

On April 18, 1885, the said entry was suspended, for the reason that the required affidavit of entry was made by a person other than the entryman, and Hunter was allowed sixty days to furnish the required affidavit. This he failed to do, and on April 22, 1887, your office, by letter "H," held the entry for cancellation, of all which efforts were made to notify Hunter. No appeal was taken from your action, and on March 22, 1888, the entry was formally canceled, and the case closed.

On June 2d following, Robert L. Garlichs filed in your office an application to have your office reconsider the order of cancellation, and that he be allowed to intervene as a transferee to complete the entry of Hunter. This application was supported by his affidavit in which he says:

I am the present owner of the (describing the land) by virtue of purchase thereof, and deed thereto from one J. D. Macfarland. I further state that I am informed, and understand, that the said land was entered at the Kirwin, Kansas, U. S. local land office on the 3d day of September, 1884, by one William Hunter, the former homestead clamant thereof, as per cash entry No. 3584 under act of June 15, 1880, and that said entry is suspended by the Hon. Com'r of the Gen'l Land Office for reasons-the exact nature of which affiant is not informed.

He says he encloses his deed therewith, but he failed to do so. He did not state how Macfarland acquired title to the land, and did not attempt to trace his title to William Hunter, the entryman.

On May 22, 1889, your office passed upon said application and found that Garlichs had not shown any title as transferee under Hunter, nor shown any ground for reinstating said canceled entry; you held that he had not shown any right to be allowed to intervene, and you refused to disturb the present status of the matter. From this action Garlichs appealed.

The power of attorney by Hunter, constituting Loomis his attorney in fact, is with the papers. It purports to be made by William Hunter of Salem, Kenosha county, Wisconsin.

The acknowledgment purports to have been taken by one Charles Haynes as notary public of Lake county, Illinois, but it is not authenticated by a notarial seal.

By the law of Illinois, Section 7, Chapter 99, Illinois Stats., 1883, a notary public "shall authenticate his official act by a seal upon which shall be engraved words descriptive of his office and the name of the place or county in which he resides."

This pretended power of attorney does not pretend to give any authority to Loomis to sell, convey, transfer, or incumber the land, described in it. It was placed on record September 2, 1884-Book "B", page 174.

Hunter, so far as it appears, cannot be found, and has not been heard of since the entry was made.

Hunter, when the purchase (cash entry) was made, through his attorney in fact, took all the title the government parted with when the final proof was allowed by the local officers, and the final certificate issued. On the day preceding the cash entry, this power of attorney was placed on record, and was notice to the world of the authority it conferred. There is nothing to show that Hunter ever attempted to transfer his title to any one. Whoever bought of Loomis, in law, knew he had no authority to sell. Judge Parsons in his work on contracts, in discussing the relations of principal and agent, while speaking of cases wherein the agent exceeds his authority, says: (Vol. 1, p. 43).

But a principal may well say to one who dealt with an agent for a particular purpose, it was your business, first to ascertain that he was my agent, and then to ascertain for yourself the character and extent of his agency.

Not only was the power of attorney of record, but Garlichs says he understands that the land was entered by Hunter at Kirwin, Kansas. The records of that land office showed the entry suspended on April 18, 1885, held for cancellation April 22, 1887, and canceled and the case closed April 11, 1888. After all this Garlichs claims to be a purchaser for a valuable consideration, but he does not say he was ignorant of the status of the case, or that he was an innocent purchaser. Under such circumstances, he asks to have your office re-instate an entry that had been on the books over ten years, during over three of which your office and the local officers had been trying to secure a compliance with law, and during none of which time has the law been complied with.

Garlichs was bound in law to know the status of this land, and the condition of the title, or rather the want of title. The most ordinary diligence would have ascertained its defects. He could not be considered an innocent purchaser, if he had claimed to be such. He has wholly failed to make such a showing as entitles him to intervene, or as would warrant your office in re-instating a canceled entry.

Your action is approved. The status of the land will remain undisturbed, and his application be dismissed.

RAILROAD GRANT-PRE-EMPTION CLAIM-FILING.

BUCKINGHAM v. NORTHERN PACIFIC R. R. Co.

The declaratory statement determines the amount of land covered by a pre-emption claim, and a mere allegation that land not included in the filing was in fact embraced within such claim, will not be accepted as sufficient to impeach the record evidence as to the extent of such claim, and thus defeat the operation of a railroad grant.

Acting Secretary Chandler to the Commissioner of the General Land Office,

May 8, 1891.

This appeal is filed by the Northern Pacific Railroad Company from the decision of your office of February 11, 1890, rejecting the claim of the company to the S. of the SW. of Sec. 23, T. 10 N., R. 5 E., Helena, Montana, and allowing the homestead entry of Abraham Buckingham for said tract.

The land is within the limits of the grant of said road as definitely located July 6, 1882, but was not within the limits of the withdrawal upon map of general route.

Abraham Buckingham filed declaratory statement for the tract in controversy, together with the E. of the NW. of Sec. 26, same township and range. On November 28, 1888, he transmuted said filing to homestead entry and made final proof thereon January 24, 1889.

The record shows that at date of definite location of said road the SE. of said SW. of Sec. 23 was covered by the unexpired pre-emption filing of De Mott Stinson, which also embraced the E. of the NW. of said Sec. 26.

Stinson, who was one of the witnesses to the final proof of Buckingham, testified that he pre-empted said land and sold the improvements: thereon to Buckingham, who went upon it in 1883.

The record shows that Stinson's pre-emption declaratory statement did not embrace the S. of the SW. of said section, but only the SE. of said SW., and hence there is no evidence that the SW. of the SW. 4 of said section 23 was claimed at date of definite location, except the testimony of Stinson, who states that "I formerly pre-empted the laud and have located same on map and often been upon the same."

From this testimony your office held that "Stinson ought to know best what land was claimed by him as a pre-emption, and if the same was not properly described by the local officers, that was no fault of his, and his testimony must stand."

I find no testimony in the record that warrants the finding that the SW. of the SW. 1 of said Sec. 23 was claimed at the date of the filing of map of definite location.

The witness, Stinson, testifies generally that he pre-empted the tract covered by Buckingham's entry, but the record shows that his declaratory statement only covered the land in Sec. 26, and the SE. of the SW. 4 of Sec. 23, and there being no testimony showing that he claimed any land except the land pre empted by him, the record is the best evidence of what land was covered by his pre-emption claim, and it was error to find upon the testimony offered that the SW. 4 of the SW. of Sec. 23 was claimed at date of definite location, so as to except it from the operation of the grant.

Your decision is modified accordingly, and the entry of Buckingham will be canceled as to the SW. of the SW. of said Sec. 23.

HOMESTEAD CONTEST-RESIDENCE.

FEE v. YOUNG.

The failure of the wife and children of the claimant to reside on the land until after initiation of contest does not necessarily impeach the good faith of the claimant. Assistant Secretary Chandler to the Commissioner of the General Land Office, May 8, 1891.

October 5, 1885, Robert Young made homestead entry for the SW. of Sec. 13, T. 7 S., R. 28 W., Oberlin, Kansas.

January 10, 1887, Dwight Fee initiated contest against the same, alleging that

defendant has wholly abandoned said tract; that he has changed his residence therefrom for more than six months since making said entry; that said tract is not settled upon and cultivated by said party as required by law; that defendant has never established or maintained residence on said land as required by law, and defendant has never resided or moved his family to said land, but has resided in Ill., since making said entry.

Hearing was had June 9, 1887, and September 23d following the local officers recommended the cancellation of the entry.

Young duly appealed, and by your letter of June 1, 1889, now before me, you affirm the action of the register and receiver, and the defendant now appeals to this Department.

After a careful examination of the testimony, I am satisfied that your judgment is wrong. I think the evidence shows that the entryman acted in good faith; that he entered the land for the purpose of mak

ing his home on it, and that all of his conduct in relation thereto goes to show that he designed to remove with his family to the land in controversy, as soon as his wife's health would permit.

The facts as disclosed by the testimony are follows:

Immediately after making his entry, in October, 1885, he constructed a good, comfortable sod house on the tract, sixteen by twenty-two feet in size, with board roof and floor, one door and two windows. His family was then residing in Illinois, and as soon as he had constructed his house, he returned to them, where he remained until March, 1886, five months after making his entry, when he returned to the claim, bringing with him a mule team, wagon, necessary furniture, cooking utensils and provisions, two plows, a cultivator, carpenter tools, feed (oats) for his team, seed corn, 300 pounds of barbed wire for fencing, and set out fifty maple trees near his house. That spring he fenced with oak posts and barbed wire about six or seven acres, and broke and planted to corn about five acres. He remained on the land, living in the house, until about the middle of June, when he was called back to Illinois (where his family still lived on an eighty acre farm he owned there) by the sickness of his wife. She gave birth to a child soon after his arrival, and he remained with her and his family until September, when he returned alone to his claim, his wife being unable to accompany him on account of her ill health, and she needing the care of his family they remained with her. He remained on his homestead from that time until the middle of December, during which time he cut and shocked his corn and cut and stacked about three tons of hay. The occasion of his going back to Illinois in December, 1886, was to be present at a law suit in which he was defendant, and bring out his family. The case was tried in December, and shortly after he was taken down with rheuma. tism, which confined him to the house. This is clearly shown by the affidavit of himself and a physician, upon which a continuance in the case was had from March to June, 1887.

He returned to the claim with two of his children on the 15th of March, 1887, who were residing with him at the time of the hearing, his wife and the rest of his family (four children) still remaining in Illinois, she still being too ill to be removed. In the meantime, between his return in March, 1887, and the time of the hearing, he had continued his improvements on the land; had sealed and plastered his house, built a stable eighteen by thirty-six feet, with mangers and stalls, a wagon shed eight by eighteen, with good roof on both, a chicken house seven by ten; set out eight hundred ash trees and some fruit trees, apple, plum and cherry; planted thirty acres of corn, and ten acres of millet.

He also swears that when he came to the land in March, 1886, it was arranged that his family should join him in Kansas as soon as his wife was able to travel, and that when he went back in December of the same year, he expected to bring his family back with him the next