Sidebilder
PDF
ePub

been raised at that time although the existence of the same was a matter of public record.

It further appears from the papers now before me that on December 21, 1874, Mudgett sold and conveyed the land in question to said Baldwin, for the stated consideration of $1,500, and that Baldwin subsequently conveyed the same to one D. T. Morris, who, it seems, is at present in possession of and claiming the land under and by virtue of the entry of Mudgett and the several conveyances aforesaid.

Thompson bases his protest against the issuance of patent to Mudgett, upon his claim to the land by virtue of his settlement and filing thereon, after its restoration to the public domain, as stated, alleging that the entry of Mudgett was illegal in its inception and therefore void, because made for land at the time in a state of reservation and, for that reason, not subject to entry.

Now, while it is true that the entry in question was made after the land embraced therein had been withdrawn from settlement and entry as stated, yet the same appears to have been made in accordance with the then existing practice, which had previously grown up under decisions of your office and this Department, of allowing such entries for land in sections withdrawn for indemnity purposes under grants to railroads, the same to remain of record until the adjustment of the grant, when, if the land was not needed in satisfaction thereof, the entries thus made could be carried to perfect title. The continuance of this practice was not prohibited, until, by departmental circular of May 22, 1883 (2 L. D., 517), which refers to the existence thereof, it was directed that thereafter, applications to enter lands thus withdrawn, except when the applicant alleges settlement prior to the date of the receipt of the order of withdrawal, at the local office, should be refused.

The entry of Mudgett having been allowed under a practice at the time recognized and approved, and for land at the time under the jurisdiction and control of the Department, which possessed the power to limit the operation of said withdrawal, after having made it, or to revoke the same in whole or in part, it can not be held that said entry was illegal in its inception, or that the making of the same was, in any sense, a void act. Having been thus allowed it was properly placed of record, subject, however, to the rights of said railroad company.

The mortgage given by Mudgett on the land in question, as stated, was not, in my opinion, such a conveyance thereof as is contemplated by the requirement of Sec. 2291 of the Revised Statutes, that the entryman, before obtaining his final certificate, shall make affidavit that no part of his land has been alienated, nor do I think the same was of itself, in any sense a violation of the provisions of the homestead law. The alienation prohibited by the statute is an absolute alienation of the land or a part thereof, whereas the mortgage given by Mudgett was simply a pledge for the security of a debt, to be avoided on payment of the debt.

It has been held by this Department that a pre-emptor, whose good faith is manifest, is not prohibited from mortgaging his claim to procure money to pay for his land, and that such act is not a violation of the pre-emption law, which in its provisions against allowing the making of contracts of conveyance, or agreements to convey, before final entry is quite as comprehensive as are the similar provisions of the homestead law. See cases of Larson v. Weisbecker (1 L. D., 409), and William H. Ray (6 L. D., 340).

Following the principle thus enunciated, I see no good reason why a homestead entryman, whose good faith is otherwise apparent, may not mortgage his claim, before final certificate, to procure money with which to improve his land, or for any other purpose, not in itself tending to impeach his bona fides.

I am constrained to hold, therefore, that Mudgett's entry was not forfeited by reason of the mortgage given by him, as aforesaid, and that upon the record here presented, his claim can not be prejudiced thereby.

I come next to consider said departmental decision of May 16, 1878. This decision never became final, but has remained since its date, continuously, in a state of suspension. The suspension was ordered for the express purpose of allowing time to procure such information as would enable the Department to properly adjust the matters in controversy between Mudgett and the Dubuque & Sioux City Railroad Company. The effect of such suspension was to hold said decision, for the purposes stated, within the jurisdiction and control of this Department, and the case, as between the original parties thereto, will, therefore, be considered as now before me for consideration and final determination, in the light of information furnished by the present record, the same as though said decision had never been made.

The entry in question, as originally made, being as shown, a prima facie valid entry, and the land covered thereby having been relieved from the operation of the withdrawal for the benefit of said railroad company, by the restoration thereof by departmental order of December 1887, as stated, the grounds upon which said entry was held for cancellation have ceased to exist. The company having failed to make selection of the land for indemnity purposes prior to the promulgation of said order of restoration, its rights in the premises are concluded thereby, and the effect thereof is to relieve Mudgett's entry from any conflict with said grant or the withdrawal based thereon. There is, consequently, no longer any controversy between him and said company in reference to said land. His rights thereto attached immediately upon the restoration thereof as aforesaid.

The decision of your office of April 18, 1877, holding Mudgett's entry for cancellation is therefore reversed, and the papers now before me are returned to you for appropriate action in the premises, in view of the foregoing.

The entry of Mudgett may be examined, free from any question of

conflict with the rights of the railroad company, under said grant, with a view to issuance of patent thereunder, if his final proof be found in all respects sufficient, or upon proper application by the transferee now in possession of the land in question, if such final proof be found defective, I see no good reason why the latter may not be allowed to purchase the land under the act of June 15, 1880, as suggested by you.

The land having been segregated from the public domain by the entry of Mudgett, subject only to the prior right of selection by said company, under said withdrawal, no subsequent rights could attach thereto as long as said entry remained intact upon the records. The land was in no sense public land after it had been entered at the local office and certificate of entry obtained. Witherspoon v. Duncan (4 Wallace, 218). I concur therefore in your conclusion that the settlement and filing of Thompson were clearly illegal, and that he can not be held to have ac quired any rights thereunder.

SPECULATIVE CONTEST-HOMESTEAD ENTRY-RESIDENCE.

DAYTON . DAYTON (ON REVIEW).

A contest for the purpose of making a speculative entry under the homestead law, is as much a speculative contest as though brought for the purpose of speculation without such entry.

An entry under the homestead law for any other purpose than the establishment of a home to the exclusion of one elsewhere, is an entry in bad faith, and a contest with a view of making such an entry is in bad faith, and no preference right can be secured thereunder. An entry obtained by virtue of such a contest is invalid and should be canceled.

Residence cannot be acquired or maintained by going upon or visiting land solely for the purpose of complying with the letter of the law. The act of going upon, and the occupancy of the land, must concur with the intent to make it a permanent home to the exclusion of one elsewhere.

A motion for review on the ground that the decision is contrary to the weight of evidence, if grantable at all, where there is some evidence to sustain the decision, can only be allowed where the latter is clearly against the palpable preponderance of the evidence.

A motion for review may be amended where no party in interest can be surprised by the matters set up in the proposed amendment, or suffer any detriment from the allowance thereof.

Secretary Vilas to Commissioner Stockslager, February 25, 1889.

In the case of James R. Dayton v. Lyman C. Dayton, involving the SE. of Sec. 14, T. 123, R. 64 W., Aberdeen district, Dakota, both of said parties move for a review of the departmental decision therein of October 1, 1887. (6 L. D., 164.)

For a full statement of the proceedings, as they appear of record throughout the various stages of the controversy between the Daytons in reference to said land, reference is made to the departmental decis

ion of August 8, 1884, in Dayton and Dayton v. Scott (11 C. L. O., 202), and the decision of October 1, 1887, in Dayton v. Dayton (6 L. D., 164), now under consideration.

It is sufficient to state here, that the land was originally entered by one, Andrew L. Scott, under the timber culture law, and both the Daytons claim preferred rights as successful contestants of said entry, and the question before this Department for consideration in said decision now sought to be reviewed, was, whether either of the Daytons had a preferred right of entry, and, if so, which. It was held in said decision, that the contests of both were in bad faith, and therefore that neither had the preferred right of entry.

In said motion for review, it is not claimed, that the substantive facts upon which said decision is predicated are not correctly stated therein, but error is alleged in the conclusions both of fact and law drawn therefrom.

In the motion of Lyman C. Dayton there are twelve specifications or assignments of error. The first four allege errors in findings or con

clusions of fact as follows:

1. Error in fact in finding that Lyman C. Dayton has not, in fact established or maintained at any time a bona fide residence on the land.'

2. Error in fact in holding that said Lyman C. Dayton bas never 'in good faith ever had any residence on the land.'

3. Error in fact in holding that the contest of said Lyman C. Dayton against the timber culture entry of Scott was not in good faith' for the purpose of securing the laud as a homestead by and through compliance with the conditions and require. ments of the homestead law.

4. Error in fact in holding that said Lyman C. Dayton never at any time has intended to take the land for bona fide settlement.'

The first and second of these assignments are in substance the same and involve both the act of going on the land and the intent accompanying the act; the fourth relates to the intent alone; and the matter alleged as error in the third would seem to be the conclusion drawn from the matters of fact, the erroneous finding of which is set up in the first, second and fourth.

As appears from said third assignment of error as well as the entire history of the case, Lyman C. Dayton bases the good faith of his contest of the entry of Scott on the claim, that said contest was "for the purpose of securing the land as a homestead by and through compliance with the conditions and requirements of the homestead law," and as showing that such was his purpose, he has from time to time introduced affidavits as to residence and improvements. On the affidavits so introduced, taken in connection with the other facts of the case, this Department found, as alleged in said first, second and fourth assignments of error, that he never in fact "at any time established or maintained or had a residence in good faith on the land," and "never at any time intended to take the land for bona fide settlement," and from these facts arrived at the conclusion as alleged in the third assignment of error, that his

contest was not in good faith for the purpose named. If it was not in good faith for that purpose, then he can not be heard to say that it was in good faith at all, as he has distinctly placed his claim of good faith upon that ground alone; and, if the evidence introduced to establish that claim, not only fails to support it, but shows, as found by this Department, that he "never in good faith established or maintained residence on the land and never at any time intended to take the land for bona fide settlement," then there was no error in the conclusion that the contest was not in good faith "for the purpose of securing the land as a homestead by and through compliance with the requirements and conditions of the homestead law."

There is no pretence of newly discovered evidence and no new evidence offered, and the ground of the motion of Lyman C. Dayton as disclosed by the above four assignment of error, is, that the said findings of fact were contrary to the weight of the evidence then before this Department. Under Rule 76 of Practice, motions for review of a departmental decision are only allowable "in accordance with legal principles applicable to new trials at law," and, when the ground of the motion for a new trial at law is that the verdict is contrary to the weight of the evidence, such motion, if grantable at all where there is some evidence to sustain the verdict, can only be allowed where the latter is clearly against "the palpable preponderance of the evidence." (Hilliard on New Trials, 2d Ed., p. 458, Sec. 21; ib., p. 466, Sec. 37; ib., p. 456, Secs. 19 and 20.) The evidence in this case as to residence showed, as stated in said decision, that Lyman C. Dayton paid occasional visits to the tract, having in the meantime a home in Minneapolis, at which he lived regularly. Residence can not be acquired or maintained by going upon or visiting a claim solely for the purpose of complying with the letter of the law with a view of thereby acquiring title to the land, but the act of going upon and the occupancy of the land must concur with the intent to make it a permanent home to the exclusion of one elsewhere. Without such intent there can not be good faith within the meaning of those words as applied to the homestead and pre-emption laws. The facts of this case leave no room to doubt, that Lyman C. Dayton has never had such intent, and therefore the said findings of fact complained of in the above assignments of error were not only not against but clearly in accord with the "palpable preponderance of the evidence."

The remaining eight assignments of error by Lyman C. Dayton allege errors in law and, with slight shades of difference, all substantially assert the proposition, that the cancellation of his homestead entry of September 25, 1884, was unauthorized in the absence of charges filed against said entry setting forth some breach on his part of the require ments of the homestead law, or a regular contest of said entry in conformity to the rules and regulations of this Department governing contests in ordinary cases-in other words, that the cancellation of said

« ForrigeFortsett »