sist him in his attempt to defraud his mortgagee, and urging also that the appellant should be afforded an opportunity to show that the entryman had resided on the land for more than five years after attaining his majority.

Upon review of the record and proofs herein, I am of the opinion that your office erred in directing the local officers to cancel Nicholas' entry as it is shown that more than two years prior to the date he filed his relinquishment, he had mortgaged said described tract to the appellant for a valuable consideration, thus parting with his personalright of relinquishing to the government his interest in said entry.

In view of this fact his pretended relinquishment should not have been accepted, nor his entry and final certificate canceled.

The case at bar is somewhat similar to the case of Falconer v. Hunt,. et al. (6 L. D., 512), wherein it was held that—

The land department will take notice of the rights of subsequent purchasers and mortgagees in good faith after the issuance of final certificate to the original entryman, when notice of such mortgage or transfer is brought home to it. And the right of said third parties to appear and protect their interests by showing a proper compliance with the law on the part of the entryman is uniformally recognized.

If the facts set up in said affidavit are true, the government will not be a party to such an unconscionable wrong, nor permit the entryman by such a fraudulent practice to defeat the rights of the mortgagee who has confided in what he supposed to be the integrity of Nicholas in connection with this entry and loan. Let honesty and fair dealing characterize the acts of the entryman both towards the government and those with whom he deals in making his entry. If Nicholas was a qualified entryman at the time of makin, this entry and had complied with the homestead laws, the entry should stand.

In view of the foregoing decision, and as Hastie appears to be a mortgagee in good faith, you are directed to re-instate the said original entry and final certificate of Nicholas, and the mortgagee will be permitted, within a reasonable time, to file supplemental proof duly corroborated showing that the entryman resided continuously on the said described tract during five years after attaining his majority. The said decision of April 14, 1888, is reversed.

GRADUATION ENTRY-SWAMP GRANT-REPAYMENT.
FARMER MOORE.

The inadvertent issuance of patent under the swamp grant for a tract of land included within a previous graduation entry, erroneously allowed therefor, defeats the confirmation of such sale under the act of March 2, 1855, and entitles the purchaser, or his assignee, to repayment.

First Assistant Secretary Chandler to Acting Commissioner Stone, June

20, 1889.

On December 19, 1887, Farmer Moore made application to your office for the repayment of the purchase money paid on entry of the NW. of

the NE. of section 25, T. 33, R. 23, Springfield land district, Missouri, as per certificate No. 17,072.

His application was denied by your office decisions of February 11, and June 7, 1888.

S. L. Crissey, attorney, on behalf of Moore, appealed to this Department.

The facts in the case are as follows: One Terry Tucker on December 15, 1851, made cash entry No. 17,072 for the W. of the SE. 4, section 24 and the NE. of section 25, T. 35 N., R. 23 W., at the land office at Springfield, Missouri under the graduation act of August 4, 1854, paying for the land at the rate of seventy-five cents per acre.

Patent was issued to Tucker for the land covered by his entry Octo ber 30, 1857.

Previous to the time of the said entry October 12, 1854, the State of Missouri claimed the said section 25, as swamp land under act of Congress passed September 28, 1850, (9 Stat., 519). The claim of the State was approved by the Secretary of the Interior, January 17, 1857, and patent, covering the whole of section 25 aforesaid, issued to the State, March 26, 1857.

It appears that the right and interest of Tucker to the said NW. † of NE. passed by deed dated February 26, 1869, to Farmer Moore, the applicant; it further appears that the State of Missouri oy patent dated November 19, 1869, conveyed the NE. of said section 25, to Polk county in the said State and that Polk county, after having in an action of ejectment recovered from the said Farmer Moore the said forty acres, described above, conveyed the same for a valuable consideration to him by proper deed of conveyance dated, December 1, 1887.

In Farmer Moore, therefore, centers the titles to the said land derived from Tucker and also from the State of Missouri. Moore's attorney urges, that the said act of 1850, was a grant in præsenti and therefore conveyed all the interest the government had in the land to the State and that Tucker's entry, so far as the said NW. of NE. is concerned, } was consequently illegal and should be canceled.

Your action refusing Moore's application was controlled by an act of Congress entitled "An act for the relief of purchasers and locators of swamp and overflowed lands," passed March 2, 1855, (10 Stat., page 634). Admitting the said forty acres to be swamp land, and the char acter of the same seems, as between the government and the said State, to have been fully determined by the Secretary's approval of the State selection January 17, 1857, and the issue of patent to the State, March 26, 1857-I think, the allowance of Tucker's entry for the same was erroneous; and it further seems clear to me that by the issue of the said patent, to the State, though the same might have been in view of the act of March 2, 1855, inadvertently issued, title to the land so patented passed out of the United States. Wisconsin Central R. R., v. Stinka (4 L. D., 344) and cases there cited. Henceforth, while the

patent to the State was outstanding, the government could convey nothing by a subsequent patent. When, therefore Moore, the transferee of Tucker, comes before this Department waiving his right under the Tucker patent it seems to me his petition for the repayment of the purchase price for the lands in question should be granted. He paid for the land, as it now stands, twice, and unless relieved here, he would be remediless. The said land being swamp land was erroneously sold by the United States and the government having issued patent therefor to the State of Missouri and thereby incapacitated itself to confirm the sale, the said act of March 2, 1855, notwithstanding. Accordingly I conclude that Moore's application should be granted and repayment allowed in conformity with the provisions of section 2362 of the Revised Statutes.

Your said office decision is therefore reversed.

HOMESTEAD ENTRY-PRE-EMPTION FILING-SETTLEMENT RIGHTS.

WILLIS v. PARKER.

A pre-emption filing should not be allowed for land covered by the homestead entry of another; but if offered, for land thus appropriated, a hearing should be had, if priority of right is alleged by the pre-emptor, and, if such priority is established, the entry canceled so far as in conflict with the filing which may then be allowed.

The burden of proof is upon one alleging priority of settlement right as against the subsisting entry of another.

Settlement rights under the public land laws are not acquired by the purchase of the possessory right and improvements of another, but rest on the acts of settlement performed in person by the party claiming the benefit thereof.

First Assistant Secretary Chandler to Acting Commissioner Stone, June 20, 1889.

The land involved herein is the E. of the NE. of Sec. 12, T. 8 N., R. 3 W., and lot 3, Sec. 7, T. 8 N., R. 2 W., Marysville land district, California.

The record shows that on September 4, 1885, Eugene P. Willis made homestead entry for these tracts together with lot 7, of Sec. 6, T. 8 N., R. 2 W., and that on September 15, 1885, Franklin L. Parker was permitted to file his pre-emption declaratory statement covering the tracts in question and lot 3, of Sec. 7, T. 8 N., R. 2 W., alleging settlement August 29, 1885. The township plot embracing T. 8 N., R. 3 W., was filed May 13, 1884, and that embracing T. 8 N., R. 2 W., was filed February 9, 1885.

In pursuance of published notice Parker submitted final proof April 5, 1886, and was met by the protest of Willis against the acceptance thereof. A hearing was had before the local officers for the purpose of determining the respective rights of the parties, at which they both appeared and submitted testimony.

Upon the evidence produced the local officers found for Parker, and recommended that he be allowed to make payment for the land on the proofs submitted; and that the entry of Willis be canceled.

On appeal by Willis, your office, on August 30, 1886, reversed the action below and awarded the land to Willis, subject to his future compliance with the homestead law and rejected the proof of Parker and held his filing for cancellation.

The papers are now before me on Parker's appeal from this decision. The only serious question to be determined upon the record presented is, whether Parker actually made settlement on the land at the date alleged in his pre-emption declaratory statement, or prior to the homestead entry of Willis.

There has been, however, some irregularity in the proceedings. The local officers erred in permitting the filing of Parker to be made, after the land in question had been segregated from the public domain by the entry of Willis, simply upon Parker's allegation of prior settlementthe proper practice in such cases being to require a contest against the homestead entry, and a hearing to determine the question of such prior settlement, after which, if such prior settlement be established, the homestead entry should be canceled and the pre emption filing then allowed.

Parker should have been required to establish his prior right to the land, and to have thus secured the cancellation of the entry of Willis, so far at least, as it was in conflict with his proposed filing, before the latter was allowed to be placed of record; and in determining the issue herein involved the burden of proof must therefore be considered as resting on the pre-emption claimant. By thus considering the testimony it is not seen that any injustice will result to either party by rea son of the irregularity aforesaid.

The testimony submitted at the hearing, examined in the light of the foregoing, discloses the following facts:

During the winter of 1883-4, Willis and one Hall Allison lived together in a cabin built by them jointly, on lot 3, Sec. 7, of the land in controversy, and appear to have been engaged in cutting and removing wood and timber therefrom and from the tracts adjoining on the north and west. They were thus operating, and apparently residing on these tracts for some time before they were surveyed, their object professedly being to acquire title to the same under the homestead law. After the public surveys were made, to wit, about August 1, 1855, there was, according to the testimony of Willis (Allison not being examined as a witness at the hearing) a verbal agreement or understanding between them to the effect that Allison was to have the land on the west side of the township line between T. 8 N., 3 W., and T. 8 N., 2 W., and that Willis was to take that on the east of said line and to move the house in which he was then residing on lot 7, Sec. 6 N., R. 2 W., to Allison's claim on the west of said line, and about three quarters of a mile further south;

but no definite description of the specific tracts included in said agreement is given, nor does it appear that any attempt was ever made by either party, to carry the agreement into effect.

On August 29, 1885, Parker agreed with Allison to purchase the improvements situated on the tracts here in question, consisting of a cabin or house of three rooms, a well, and some fencing and breaking, and which, so far as this record shows, were chiefly if not wholly, on lot 3 of Sec. 7, T. 8 N., R. 2 W., and therefore on the east side of said proposed division line, at the price of $300. He paid $20 cash on the purchase price and on the day named, he and his wife, with a couple of relatives, ate their dinner on the land (said lot 3) under a tree near the cabin, in which Allison then resided, fed their horses and went away. Allison remained on the premises and continued to occupy the same until September 5th following, when Parker returned, paid the balance of the purchase price for the improvements, took possession thereof and established his residence in the cabin or house. He rebuilt the house, made some fencing and some repairs and cultivated seven acres valued in all at $400; and his residence on his claim since September 5, 1885, has been continuous.

It further appears that Willis lived with Allison in the cabin or house on said lot 3 until about the month of September, 1884, when the latter brought his widowed sister-in-law with her family there to reside; whereupon he (Willis) moved into a cabin which he had previously built on said lot 7, Sec. 6. He did some breaking on this latter tract, and cultivated five or six acres thereof during the season of 1885–6, and swears that he has resided thereon continuously since November, 1885. He further states, in effect, that he first learned that Allison had agreed to sell out to Parker about the 1st or 2d of September, 1885, through one J. C. Pitkin; that he met with Allison in the town of Winters on September 2nd and asked him if he had agreed to sell his claim, and he replied that he had agreed to sell the W. of the NW. 4, Sec. 7, and the E. of the NE. 4, Sec. 12, and that he (Willis) could look out for himself; that he started the next morning for the land office at Marysville, for the purpose of making said entry but did not reach there until September 4th. Parker claims that he made complete purchase of said improvements and the possessory right of Allison on the 29th of August, 1885, and that his first act of settlement on the land was then acquired by making such purchase and in eating his dinner and feeding his horses thereon. He did no act, however, so far as the record shows, that would even tend to give notice to the world that he had, on that day, made actual settlement on the land. Especially is this true in view of the fact that Allison remained in possession and full control of the premises for some days thereafter, and until Parker's return September 5th, following, when absolute possession was for the first time surrendered to him.

While it may be a hardship for Mr. Parker to lose the money ex16184-VOL 8———40