HOMESTEAD ENTRY-RELINQUISHMENT-ACT OF JUNE 15-1880.

RICE v. BISSELL.

A voluntary relinquishment of the original entry, divests the entryman of all claims thereunder, and effectually precludes the right of purchase under section 2, act of June 15, 1880.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 13, 1889.

I have considered the case of James W. Rice v. Harlow A. Bissell on appeal by the former from your office decision of April 13, 1888, rejecting his application for the SW. of Sec. 3, T. 19 S., R. 25 W., Wa Keeney, Kansas, land district.

Bissell made homestead entry for said tract October 18, 1878, which entry was canceled May 26, 1882, on relinquishment. On the same day May 26, Joseph Langellier made timber culture entry for said tract. This entry was canceled December 10, 1885, on relinquishment and on the same day, Bissell the first entryman, purchased said tract under the act of June 15, 1880 (21 Stat., 237).

On January 20, 1887, James W. Rice applied to make homestead entry for said land which application was rejected by the local officers because the land was covered by Bissell's cash entry. Rice appealed from that decision urging that Bissell's entry should be canceled because previous to making the same he had sold or agreed to sell the land cov ered thereby, and because long before the date of said entry he had forfeited all right under his original entry by his relinquishment. In your office it was held that the fact that the entryman had made a previous agreement to sell, would not affect his right to purchase the land under said act, and affirmed the action of the local officers. The other objection urged against Bissell's entry was not mentioned in said decision. nor does it seem to have been considered in your office.

In the appeal to this office it is earnestly urged that Bissell, by his relinquishment determined all his rights under said entry and that he could not thereafter become entitled to the benefit of the act of June 15, 1880.

In the case of George S. Bishop (1 L. D., 69) the entryman's application to purchase under the second section of said act, was allowed subject to the adverse intervening rights of another, although, as the statement of facts in that case shows, the original entry had been canceled for voluntary relinquishment. It has also been the invariable rule of this department to allow the entryman in the absence of adverse claim, to purchase under the provisions of said act, where the original entry had been canceled for abandonment, or for failure to offer final proof in support of his entry within the period provided by law therefor. John W. Miller (1 L. D., 57); John R. Choate (7 L. D., 281); Campbell v. Kelley (8 L. D., 75).

It has also, however, been held that one, who has sold and attempted to convey to another his interest in the land covered by the original homestead entry, will not be allowed to purchase said land under this act. Watts v. Williams (6 L. D. 94); Matthiessen and Ward v. Williams (6 L. D., 95); Warden v. Shumate (8 L. D., 330).

The theory of the law is to allow the party who has the present interest in the entry and who has not attempted to transfer to another to acquire title to the land covered by such entry by way of a purchase, and in support of this proposition it may be noted that the rules and regulations require that an entryman who applies to purchase under this act must present his duplicate receipt or show its loss and that he has not transferred nor attempted to transfer his homestead rights under said entry.

One who has formally relinquished his right under an entry has just as effectually divested himself of all claim under that entry to the land covered thereby, as if he had, by a written instrument, attempted to convey his interest to another. He has by his own free and voluntary

act released all claim to the land thereunder, and should not afterwards be allowed to set up a claim based upon said entry, unless upon a showing, as for instance of mistake in the execution of the relinquishment, such as would justify the reinstatement of the original entry.

Rice filed with his application to make entry for said land the affidavit of one A. B. Porter, who states that he owns land adjoining the tract in dispute, and is well acquainted with Bissell, that he purchased from Bissell for the sum of fifty dollars, his relinquishment of all claim in said land; that some months afterwards, he, the affiant, sold said relinquishment to Joseph Langellier who filed the same in the land office and made timber culture entry for said land. He also filed an abstract of the title to said land which shows that on December 4, 1885, Harlow A. Bissell executed a power of attorney authorizing Langellier to grant, bargain, sell and convey, said land as soon as final receipt should be issued; that on December 10, 1885, final receipt was issued to Bissell under the act of June 15, 1880; that on January 28, 1886, Harlow A. Bissell, by his attorney in fact, Joseph Langellier conveyed said land by warranty deed to Ella Langellier, wife of said Joseph Langellier; that on April 7, 1886, Joseph Langellier and wife, Ella, mortgaged said land to Smith & Briston, that on May 20, 1886, said Langellier and wife conveyed said land by warranty deed to A. B. Miller, and that on June 14, 1886, Ellen Bissell executed a quit claim deed conveying her interest in said land to Ella Langellier.

Although it would seem that the entry under consideration was not warranted by the law, yet, inasmuch as the present owners and parties in interest have had no opportunity to defend the validity thereof, against the attack of Rice, or to controvert the allegations made by him, I do not feel justified in canceling it at this time. The case is, therefore, returned to your office and you will please direct that a hearing

be had, of which all parties in interest should have due notice, to ascertain all the facts and circumstances in regard to Bissell's connection with the land, his relinquishment of the original entry, the execution of the power of attorney to Langellier, and the sale of the land by said attorney in fact, together with any other facts that may be of service in determining the rights of these various parties. Upon receipt of the testimony adduced at that hearing, you will consider and pass upon the validity of said cash entry in view of the facts established thereby, and in accordance with the views herein expressed.

SOLDIERS' ADDITIONAL HOMESTEAD ENTRY-CERTIFICATE.

HOFFMAN v. BARNES ET AL.

The right to make a soldiers' additional homestead entry is not assignable. An application to make a soldiers' additional entry, under a certificate of right requiring residence to perfect the same, by one acting nominally as the agent of the soldier, but in fact for himself, and without any intention on the part of the soldier to comply with the law, is illegal and can not be allowed.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 13, 1889.

I have considered the case of Charles L. Hoffman v. Hiram Tomlinson and Theodore F. Barnes on appeal by Hoffman and Tomlinson from the decisions of your office of October 23, 1886, and of January 14, 1887.

On October 9, 1883, Barnes made homestead entry for the SW. of Sec. 8, T. 13 N., R. 38 W., 6th P. M., North Platte, Nebraska, land district. On September 11, 1884, one Charles E. Collier, filed his affidavit of contest against said entry alleging abandonment. The hearing of this contest was continued at various times and finally fixed for May 4, 1885, the contestant having in the meantime procured by way of depositions the testimony of a part of his witnesses.

On May 2, 1885, the entryman presented at the local office Collier's dismissal of his contest. Barnes was notified that day that no action would be taken in the contest until the day to which the case had been adjourned. He, thereupon, executed his relinquishment of said entry and presented it together with two applications to make soldiers' additional homestead entries, one for forty acres based upon certificate issued to Hiram Tomlinson, February 10, 1885, and for one hundred and twenty acres based on certificate issued to Daniel L. Emerson, March 1884, when he was, as is stated in the register's letter of May 6, 1885, informed:

That his said relinquishment would be received and acted upon at once but that I would not allow him to locate the soldiers' additionals until the contest was disposed of, and upon examination of the soldiers' additionals he was informed that they would not be acted upon by this office until they were submitted to the General Land Office whereupon he left the whole with his said appeal to be filed on May 4, 1885.

In this letter the register further says:

The so called soldiers' additionals are different from any that we have ever seen and the whole is herewith respectfully submitted for your consideration.

Barnes appears to have signed the appeal as the agent of Daniel L. Emerson and Hiram Tomlinson.

On May 4, 1855, Charles L. Hoffman presented his contest affidavit against the said entry of Theodore F. Barnes, which was rejected by the local officers for the reason of the said relinquishment of the said Barnes. Hoffman, thereupon, made application for a homestead entry for the said lands. This application was also refused, because of the pendency of soldiers' additional homestead application of Emerson and Tomlinson.

Hoffman appealed from the action of the local officers and your office considering said appeals by decision of October 23, 1886, allowed Barnes to locate the additional application of Emerson for one hundred and twenty acres of the said land and rejected the additional application of Tomlinson, because the same was not signed by the latter nor accompanied by a power of attorney authorizing Barnes or any one else, to locate the same. By your said decision you approved the rejection of Hoffman's application to contest, but held that his application to enter should have been allowed as to that portion of the land left unappropriated after Barnes had made his election as to what part of the land he would locate with the additional of Emerson.

Barnes, in his own proper person on November 12, 1886, files his mo tion for a review of your said office decision in relation to the rejection of Tomlinson's additional homestead entry. The motion is based on the ground, that at the date of the presentation of Tomlinson's application, he, Barnes, was fully authorized to file the same, but that the power of at. torney delegating such authority (filed in your office October 23, 1886, by defendant's attorneys, Messrs Curtis and Burdett) having been mislaid he was unable to produce it. The power of attorney filed as aforesaid purports to be executed by Tomlinson to T. F. Barnes, July 7, 1881; it appears to be acknowledged the same day before the judge of Llano county, Texas.

By your office decision of January 14, 1887, Barnes' motion was denied.

Messrs. Curtis & Burdett, as attorneys of Hiram Tomlinson thereupon appealed from so much of your said decision of October 23, 1886, as declines to permit the location of the additional homestead certificate of Tomlinson on the land in controversy and from the whole of your said decision of January 14, 1887, declining to review said decision of October 23. Hoffman, also appealed to this department from so much of your said decision of October 23, as denies his application to enter the said SW. and allows the said Barnes to enter any portion of the same. The whole case is, therefore, before me upon the said appeals and I have carefully considered the same.

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Examining the records of the application of Tomlinson, I find that he made two affidavits before the county judge of Llano county, Texas, bearing date respectively July 4, and July 7, 1881, both of which are signed by what appears to be his mark. These affidavits constituted his application for a soldiers' additional homestead entry and are in the form at that time in use. These affidavits are designed among other things to prove the applicant's identity, his good faith, that his original entry was in good and regular standing at the local office and that he had not made or agreed to make any sale, transfer, pledge or other disposition of his right to make the entry for which he thus applied. Tomlinson's power of attorney to Barnes, referred to above, bears date July 7, 1881, and purports to be signed by the former in fair, legible handwriting. The certificate of your office bears date February 10, 1885, aud certifies that the original homestead entry of Tomlinson comprising eighty acres had been canceled October 31, 1868, by reason of conflict with prior grant of lands to a railroad company, that he, Tomlinson, is entitled to make an additional homestead entry of not exceed ing eighty acres, subject to the conditions of the homestead laws, requiring the said Tomlinson to actually settle on, reside upon any tract which he may so enter, and improve and cultivate the same.

The application of Tomlinson to enter under the said certificate the NE. of the SW. of said section 8, bears no date and is not signed, either by Tomlinson or by his presumed agent Barnes, for him.

The records of the application of Daniel L. Emerson for a soldiers' additional homestead entry show, that his two affidavits constituting such application were made before the clerk of the circuit court, county of Calhoun, Michigan. They are in the same form as the affidavits in Tomlinson's application. Emerson swears that his original entry was in good and regular standing upon the records of the local office and also that he had not made or agreed to make any sale, transfer, pledge or other disposition of his right to make the entry for which he thus applied.

The certificate of your office bears date March, 1884, and certifies that the original homestead entry of Emerson, containing forty acres had been canceled April 28, 1871, by reason of abandonment; that he, Emerson, is entitled to make an additional homestead entry of not exceeding one hundred and twenty acres subject to the conditions of the homestead laws, requiring the said Emerson to actually settle on and reside upon any tract which he may so enter, and improve and cultivate the same. The application of Emerson to enter the S. of the SW. † and NW. of SW. 4 of the said section 8, bears no date; it purports to be signed by Daniel L. Emerson; comparing this signature with the signatures of Emerson attached to his said affidavits I conceive grave doubts regarding the genuineness of the former. This signature seems to me not to be genuine, but an imitation of Emerson's signature to his said affidavits.