The charge of abandonment is not sustained by the testimony and the only question for determination is whether the entryman ever really established residence upon the tract embraced in his entry.

prac

The land in contest is about four miles from the town of McCook where for months prior to making the entry Colfer was an attorney-at law, ticing before the local office. He was a married man with a wife and sev eral children and lived in a five room frame house in the town of McCook, which he had contracted to buy for $1165 and had partly paid for. In the early part of 1885 he bought the improvements on the land in contest, consisting of a small house and several acres of breaking, from a former settler named Walsh and also the relinquishment of the latter's claim to said land. Colfer filed the relinquishment and made entry of the land. He removed the house to a more desirable location on the tract, put some repairs on it and placed sufficient furniture in it to render the same habitable. This was done on or about June 9, 1885, and the next day the entryman claims that he established actual residence upon the land and that it has since been his only home. Before going to the land be took leave of his wife and children whom he left in McCook and told them that for six months at least, he would not be a member of their household. He was accompanied to the tract by his brother and another man and he asked them with the purpose as he says, of calling them as witnesses to his final proof, to remember that he had upon that 'day established his residence upon the land. The entryman swears that thereafter it was his custom to spend the nights in the house upon the claim and the days in McCook where his business required his pres ence and that when he failed to return to the land at night it was because of the sickness of his wife or of himself, unusually severe weather or some pressing matter of business. He was away from the State for a time on business. Some months after the entry was made he bought a horse and buggy to facilitate his going to and from the tract. The improvements made on the claim after entry were slight. The testimony for the contestant as to entryman's presence on the land is chiefly of a negative character; the witnesses seldom saw him there. The entryman testifies that between June 10, and August 25, 1885, he slept in the house on the land in contest "as many as fifteen or eighteen times, possibly twenty times;" when he stayed in McCook at night he slept in the house occupied by his family and sometimes took his meals there during the day. He had upon the place a heating and cooking stove and made tea and coffee but "my cooking" he says, "such as the baking of bread, pastry, and meat and so on, was done by my family in McCook." His washing and ironing was done at different places, some at the Chinese laundry in McCook and more by his hired help engaged in his family at McCook. He sometimes took a change of clothes to the house on the homestead claim but such clothes as he was not using and were not at the tailor shop for repair, he left in his house in McCook. It was his custom when he left town in the evening to take

with him a bucket filled with water; there was no well on the place and he could not afford, he says, to have one dug and was told that boring for water would not be successful. Before leaving town he would water the horse and water him again on his return to town in the morning. During the night the horse was "lariated out" and during the day he was kept in a stable which the entryman had built for the purpose near his house in McCook.

I will now proceed to consider the excuse given by the entryman for the failure of his family to reside on the land eurbraced in his entry although he contends, as a matter of law, that residence of the family of the entryman is not a requirement of the homestead law. He swears that his wife was the mother of several children, was in delicate health and was often sick; that he was frequently kept in town to attend to and nurse her; that when he spoke to her about removing to the house on the homestead she declined to 'go on account of her health and that he was advised by his family physician that it would not be prudent to remove her to his claim. Dr. Andrew J. Willey testified that he has several times been called to attend the family of Mr. Colfer; that Mrs. Colfer "was feeble during the summer and was pregnant which made her more so;" that such lack of health "continued until after her confinement which was on the 29th of September." Asked if he had given any advice to Mr. Colfer in relation to his wife and children going to the homestead and remaining there, the witness said: "I advised him against taking his wife there as I concluded it unsafe for him to do so on account of her physical condition;" his first conversation on the subject with Mr. Colfer was in May, 1885. He says Mrs. Colfer might or might not have been moved with safety but he advised against the removal because McCook, in her condition, was the better place for her to be; on the homestead she might not have the necessary comforts that she would have in McCook and in the latter place the assistance of a physician and neighbors could easily be procured, and, as an additional reason, the roads to the homestead were very rough. Dr. Kay corroborated the testimony of Dr. Willey as to Mrs. Colfer's condition and adds that she was suffering from consumption. He advised against the removal to the homestead and does not believe that it would have been safe for her to have lived there.

In the case of Stroud v. De Wolf (4 L. D., 394), it was held :

It must be conceded that, in the absence of proof to the contrary, the place where a married man's family resides must be deemed to be his residence.

In the case of West v. Owen (4 L. D., 412), it was said :

The idea that an individual can acquire or maintain a residence on a tract of public land by making occasional visits thereto while all his interests and household effects, apparently, are with his family, has been long since exploded, if, indeed, it ever had any real existence. That is to say, in order for an individual to establish residence on a tract of public land as required under the homestead law, it is necessary that there be a combination of act and intent, on his part, the act of occupying and living

upon said tract and the intention of making the same his home to the exclusion of a home elsewhere. That is "a true fixed and permanent home, and principal establishment, and to which whenever he is absent he has the intention of returning." Story's Conflict of Laws, page 35.

In a later case it was held that the residence of a settler is presumed to be where his family reside. Gates v. Gates (7 L. D., 35). Applying the principle a anounced in these cases to the case at bar the failure of Colfer's family to reside upon the tract raises a strong presumption against the claim set up by him that he established residence on the land prior to the contest and this presumption is not overcome by the testimony. The announcement made by Colfer to those who were with him on the land upon the day that he claims to have settled thereon, that he had that day established residence, taken into consideration with the intention existing at the date of the entry to prove up at the expiration of six months; his statement to his wife that for six months he would not be an inmate of the household in McCook; the making of slight improvement on the land while adding one of consid erable value to his house in McCook; the facts in relation to his washing, his cooking and the keeping of his clothes; the fact that he made the entry with knowledge of the delicate condition of his wife's health; are circumstances that lead me to conclude that the entryman never established his residence on the land.

A settler who goes upon public land with the intention of remaining just long enough to secure title by colorable compliance with the law, and then return to his former home where his family has in the meantime resided and the greater part of his personal property remained, does not establish or maintain the residence required by the homestead law. Van Ostrum v. Young, 6 L. D., 25.

A claim of residence is not consistent with the substantial maintenance of a home elsewhere. Van Gordon v. Ems, 6 L. D., 422.

"Mere visits to the land to keep alive the fiction of residence do not constitute compliance with the law. Strawn v. Maher, 4 L. D., 235.

The object of the homestead law cannot be defeated by a seeming compliance with the letter of the law while disregarding its spirit. Sidney F. Thompson, 8 L. D., 285.

The entryman, if he did not act in bad faith, acted under a mistaken understanding of the law and his pretended residence will not prevent the cancellation of the entry. Your decision is affirmed.

FINAL PROOF PROCEEDINGS-RELINQUISHMENT-MORTGAGEE.
ADDISON W. HASTIE,

A relinquishment made by the entryman, after mortgaging the land covered by his final proof, will not defeat the right of the mortgagee to show that the entryman had in fact complied with the law, and was entitled to patent.

First Assistant Secretary Chandler to Acting Commissioner Stone, June

20, 1889.

I have considered the appeal of Addison W. Hastie, as mortgagee, from the decision of your office dated April 14, 1888, cancelling the homestead entry No. 465, and final certificate No. 116, of William A.

Nicholas, for the SE. 1, SE. 4, SW. 1, SE. 1, Sec. 12, and NE. †, NE. 1, Sec. 13, T. 6 N., R. 2 E., Deadwood land district, Dakota Territory.

The record shows that on March 20, 1879, said Nicholas filed preemption declaratory statement No. 46, for said described tract, alleging settlement February 8th, same year; and on November 16, 1881, he transmuted said filing to homestead entry No. 365.

On March 29, 1884, in accordance with published notice he made final proof before the register and receiver at Deadwood, D. T., which was approved and on March 31, final certificate issued thereon.

In his final proof Nicholas stated that he was a native born citizen, twenty four years of age and a single man. That he built a house on the tract February 8, 1879, and commenced actual residence therein at that date, which was continuous. His improvements consisted of a log house fifteen by twenty-one feet, a stable sixteen by eighteen feet, a granary twelve by fourteen feet, a root house fifteen by twenty feet and one and three fourths miles of fencing; that he broke fifty acres and cropped the same six successive seasons. He valued his said improvements at $1,000.

The entryman's two final proof witnesses (Washington E. Henry, and Robert McGimpsey), stated that they believed Nicholas was qualified to make said entry; but Henry stated that he believed there was only forty acres cultivated and cropped six seasons, and placed the value of improvements at $500, while McGimpsey corroborated Henry's testimony as to number of acres cultivated and cropped five years, yet, he valued the improvements at $800.

Your office by letter "C" of February 9, 1885, directed the register and receiver to notify the entryman that according to his own proof he was a minor at the date of settlement, and that his residence can only be accredited to him, since the date of attaining his majority, but that, "If by special affidavit or otherwise the party can show, to the satisfaction of this office, that he was legally entitled to make settlement in February, 1879, his proof will be accepted."

By letter dated June 29, 1886, the register and receiver informed your office that—

Wm. A. Nicholas, who made homestead proof F. C. 116, has been repeatedly notified of your letter of February 9, 1885, "C", by which he was required to show that he was twenty-one years of age when he made settlement. He has never yet mide the proof required though we are informed that he is now living on the land and did live on it more than five years after he became of age.

On July 19, 1886, your office by letter "C", informed the register and receiver that

As the entryman is still on the land and was duly notified of the suspension of his entry, but had made no response thereto, his final entry is therefore held for cancellation, but the original entry will be allowed to stand, subject to future compliance with the law.

On July 20, 1886, the entryman appeared at the local office and executed a relinquishment of his said entry in which he alleged that he could not funish the proof called for; and at the same time surrendered his

final receiver's receipt, No. 116. On the same day the register transmitted the duplicate receipt and relinquishment to your office, and stated that "As final certificate No. 116, has been issued we have not noted relinquishment until so instructed. Please advise us in the premises."

On July 24, 1886, Addison W. Hastie appeared in person at the local office and filed the following affidavit of protest against the relinquishment of Nicholas:

That said William A. Nicholas made original declaratory statement No. 46 (Deadwood series) on the E. 4, SE. † SW. † SE. †, Sec. 12 and the NE. NE. † Sec. 13, T. 6 N., R. 2 E., B. H. M., claiming settlement thereon February 8, 1879. That on November 16, 1881, the said Nicholas converted said declaratory statement into original homestead entry No. 365; that on Mareh 31, 1884, said Nicholas made final homestead entry No. 116, of said homestead entry No. 365, and on the land above described. That the said Nicholas delivered to affiant a note for $250, and secured the same by a mortgage on said land, which mortgage was filed for record in the office of the register of deeds, Lawrence county, D. T.,-on April 21, 1884, recorded in book 28, p. 116, that affiant is still the owner and holder of said note and mortgage and that the same has not been paid or any part thereof, and that affiant has judgment therefor, in the district court of the first judicial district in and for said Lawrence county, Territory of Dakota. . . . . That the said Nicholas, has conspired with his sister Mary Biglin, and a firm of attorneys of said Deadwood, to defraud and cheat this affiant. That said Nicholas on the day upon which judgment was rendered upon the said note and mortgage to wit, July 20, 1886, went with his sister and said attorneys to the laud office at Deadwood, D. T., and attempted to file a relinquishment of said land, and at the same time and place his sister Mary Biglin, attempted to fil [make] a homestead entry upon said land, but that the same was refused by this office, and that said relinquishment was on the same day sent to the Hon. Commissioner of the General Land Office at Washington, D. C., before affiant had knowledge that the same had been made or filed. Affiant states upon information and belief, that the said Nicholas resided on said land for over five years after making said original homestead entry and after he had attained the age of twenty one years; and that affiaut is ready and anxious to furnish said proof if he has an opportunity so to do.

On September 16, 1886, attorneys for the mortgagee filed a certified copy of the mortgage, given by Nicholas, also a certified copy of the judgment of foreclosure of said mortgage which amounts to the sum of $502.85, principal, interest and costs; said counsel also filed the affidavits of five persons who live in the immediate vicinity of the tract in dispute, intending to show that the entryman resided continuously on the homestead tract since the date of final proof up to January 1, 1886. On April 14, 1888, your office by letter "C", addressed to the register and receiver at Deadwood, D. T., declined to order a hearing and decided that

The duty of this office in this instance is plain. If the entryman cannot as he alleges or will not, furnish th evidence necessary for the completion of his claim, but insists upon relinquishing all his interests therein to the government, said relinquishment must be accepted and the entry canceled, which is now done. You will note upon your records the cancellation of homestead entry N. 365, and final cash entry No. 116, based thereon, as of this date.

From this decision Hastie appealed urging that the Department should not receive and act upon Nicholas' relinquishment and thus as