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that vested right was not acquired until after entry and payment, and that by her marriage before making final proof and payment, which alone constitutes entry in pre-emptions, a woman waived her pre-emption right and can not make entry.

This decision has been uniformly followed and is based upon the proposition that the law allows a pre-emption only, to the person who at the time of the entry is either single or the head of a family, and by marriage a woman, although she might prior to that time be the head of a family, in law relinquishes that position to the husband and while that relation continues is disqualified from making pre-emption entry, being neither "the head of a family, a widow or a single person."

The filing of declaratory statement is in no sense an entry, but the mistaken idea that it is, is the source of many mistakes like the one made in the case at bar.

Your said decision is affirmed.

HOMESTEAD ENTRY-ACT OF JUNE 15, 1880.

JOHN R. CHOATE.

A homesteader may purchase under the act of June 15, 1880, even after the cancellation of his original entry, in the event that such purchase does not interfere with the subsequent right of another.

The fact that after the cancellation of the original entry, the land was entered by another, will not defeat the right of purchase, where such subsequent entry had been canceled on relinquishment prior to the application of the purchaser.

First-Assistant Secretary Muldrow to Commissioner Stockslager, August

31,

1888.

I have considered the appeal of John R. Choate from your decision of March 11, 1887, holding for cancellation his cash entry under act of June 15, 1880, for the NE. NW. 4, Sec. 14, T. 25 N., R. 22 W., Springfield, Missouri.

The record shows that John R. Choate made homestead entry on above tract December 2, 1867, which was duly canceled for abandonment July 28, 1875.

On the 21st of January, 1876, Joseph R. Wade made homestead entry for the same tract, which was duly canceled for relinquishment November 28, 1883, and on the same day William C. Cox made homestead entry which was duly canceled for relinquishment June 4, 1885. On the same day, to wit: June 4, 1885, the local officers allowed John R. Choate to purchase said tract under act of June 15, 1880, and issued cash certificate and receipt therefor.

March 11, 1887, you directed that John R. Choate's entry to be held for cancellation, for the reason that by the homestead entries of Mr. Wade and Mr. Cox for the same tract, he lost all right to purchase the

land under said act. From this decision Choate duly appealed to this office.

Section 2, Act of June 15, 1880, provides,-

That persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads, may have been attempted to be transferred by bona fide instrument in writing, may entitle themselves to said lands by paying the government price therefor. Provided, this shall in no wise interfere with the rights or claims of others who may have subsequently entered such lands under the homestead laws.

From the above language, it would appear that in considering an application under this act, the only question that presents itself is, was the land properly subject to the original entry, and will the proposed entry interfere with the rights or claims of others who have subse quently entered such lands.

There seems to be no doubt that these lands were properly subject to such entry and no adverse claim intervenes, as the subsequent entries of both Wade and Cox terminated and ceased to exist by their own voluntary acts, before Choate entered under the act of June 15, 1880.

The Department has repeatedly held that under the act of June 15, 1880, a homestead settler, even after the cancellation of his original entry, can purchase the same tract, provided it does not interfere with a subsequent right. Samuel M. Mitchell, (1 L. D., 96); Hollants v. Sullivan, (5 L. D., 115); Northern Pacific R. R Co., v. Elder et al., 6 L. D., 409.

The case of Samuel M. Mitchell, above cited, is almost similar to the case at bar. In both cases the lands have been covered by three separate homestead entries, which were duly canceled. In the case at bar the first entryman purchased the land under the act of June 15, 1880, aud his rights are subservient only to any adverse claim that may have attached subsequent to the cancellation of his entry, including any equities that may exist in favor of the later entryman. The later entrymen, however, do not set up any rights, claims, or equities and there was, therefore, no bar to Choate's purchasing the land under the act of June 15, 1880. In the case of the Northern Pac. R. R. Co. v. Burt, reported in 3 L. D., 490, it was held that the homestead settler's widow, after the cancellation of the entry could purchase the same tract under the provisions of the act of June 15, 1880.

In the case of the Northern Pacific Railroad Company against McLean, reported in 5 L. D., 529, it was held that the widow of a homestead claimant could purchase under the act of June 15, 1880.

In your decision of March 11, 1887, you state that appellant sometimes signed his name "Choate" and at other times" Choat." In his affidavit of October 21, 1887, Choate explains the discrepancy in the signatures to the original and final papers. He testifies that he is nervous, can scarcely sign his name, sometimes has others sign it for him and at times signs it without the final "E" and at other times with the final “E.” He testifies, however, that he is the identical person who

made homestead entry of said tract December 2, 1867, and who on June 5, 1885, purchased the same under the act of June 15, 1880.

In your said decision you also state that John R. Choate" on the 9th of June, 1885, made an additional entry for the Lots 8 and 9, Sec. 6, and NW. SE. 1, Sec. 18, T. 18, R. 16, New Mexico, per homestead entry No. 1021." This may be good cause for cancelling the subsequent entry, but it is no reason for cancelling his purchase under the act of June 15, 1880. The right to purchase lands legally entered conferred by the second section of the act of June 15, 1880, is not dependent upon compliance with the provisions of the homestead law, and is not subject to any other restrictions than are imposed in case of ordinary cash entry. George E. Sanford (5 L. D., 535).

In your said decision, you further state that the affidavit accounting for the loss of the duplicate receipt issued on Choate's original homestead entry, was not acknowledged in any manner. This was probably the fault of the officer before whom it was made. The jurat, or another affidavit, can probably be readily supplied, and when supplied Choate's entry should be approved.

In view of the fact that this act recognizes the power of a homestead entryman to transfer his right by a bona fide instrument in writing, and that this transfer is generally made on the back of the duplicate receipt, it is important that Choate should produce the duplicate receipt or account for its loss; showing satisfactorily that no such assignment has been made. In case of his failure to do so, his entry should be canceled. You are directed to notify Mr. Choate that unless within sixty days he furnish such affidavit, his entry will be canceled. And if the proper affidavit be supplied, you will direct the case to be passed to patent.

MINERAL PATENT-CONFLICTING TOWNSITE.

W. A. SIMMONS ET AL.

There is no authority of law for the insertion in a mineral patent of a clause reserving the rights of a townsite.

The Department has the power, with the consent of the grantee, to recall a patent which did not issue in conformity with the judgment awarding the right of entry, and was not accepted by the grantee, and issue one in accordance with said judgment.

A townsite patent is inoperative as to all lands known at the time of the entry to be valuable for mineral, or discovered to be of such character prior to the occupation or improvement of land under the townsite laws.

Secretary Vilas to Commissioner Stockslager, August 31, 1888.

This is an application filed by William A. Simmons and his grantee, the Empire Mining and Milling Company, asking that a patent issued July 31, 1882, for Empire Mining claim entry No. 40, containing certain

reservations and exceptions in favor of the townsite of Tombstone, be recalled from the office of the register and receiver and canceled, and a new patent without such reservations be issued and delivered to claimants.

This claim was located July 19, 1878, and on January 21, 1880, William A. Simmons, who had acquired title by regular conveyances of said location, made entry of said premises under the mineral laws.

Subsequent thereto, to wit: March 3, 1882, the Mayor of Tombstone filed in the local office an application to enter certain lands under the townsite laws which embraced part of the surface ground included in the Empire Mining claim, claiming that said townsite right was initiated February 1, 1879.

On September 22, 1880, a patent was issued to the townsite for the entire premises claimed in their application containing, however, the following reservations:

Provided-That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or possession held under existing laws; and provided further that the grant hereby made is held and declared to be subject to all the conditions limitations and restrictions contained in section 2386, Revised Statutes of the United States so far as the same is applicable thereto.

On July 21, 1882, the claim of Simmons for the premises in controversy was taken up for examination in your office upon his application for patent, alleging that said claim was duly located July 19, 1878, in compliance with law, and upon said application the entry of Simmons was approved for patent.

On July 31, 1882, patent was issued by your office on said entry made June 10, 1880, by said W. A. Simmons and was transmitted to the local office for delivery to the person surrendering the receiver's duplicate receipt therefor. Said patent contained the usual reservation inserted in all patents for mining claims according to the existing practice in the land office at that time, to wit:

Excepting and excluding, however, from these presents all town property rights upon the surface, and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys or other municipal improvements on the surface of the above described premises not belonging to the grantee herein, and all rights necessary or proper to the occupation, possession and enjoyment of the same.

The grantee refused to accept said patent because it contained said reservation and demanded a patent for all the land and premises included in the original location and application for patent and survey without such reservation.

This demand was refused by your office and upon appeal the Secretary of the Interior affirmed said decision December 13, 1883. Subsequently the supreme court in the case of Deffeback v. Hawke (115 U. S. 392) involving the question of the rights of claimants to mineral lands within townsite limits held that, the officers of the Land Depart

ment have no authority to insert such reservation in a patent to mineral lands.

After this decision was rendered the claimant filed another application asking the Commissioner to recall the objectionable patent, which they still refused to accept, and to issue one conformably to law.

In your letter of March 6, 1888, declining to grant the request of ap plicants, you say

It is possible that had patent never issued for said Empire claim, and had never become a matter of record as such in this office a patent, prepared therefor, since the rendition of said decision in the case of Deffeback v. Hawke, might have been issued, with no clause of reservation inserted therein. The above statement is reservedly made because under the decision referred to, it is made incumbent upon this office to examine into the respective rights of townsite as well as of the mineral claimants, the dates of inception of rights etc., and therefore without such examination, which it is not the purpose of this office now to make, it will not be said without qualification that such patent might issue, even if the contingency mentioned existed.

But aside from possibilit ics, I cannot see that the patent already issued and of record in this office, is not by virtue of the aforesaid decision of the U. S. supreme court complete and satisfactory. As the supreme court has said that the land officers had no authority to insert such reservation in a mineral patent, then it must certainly follow that such reservation inserted in such patent is void and of no effect. This being so, no good reason can be advanced why the patent, issued July 31st, 1882, should not be accepted, or why a new patent conveying no more land or rights, should be prepared, recorded and forwarded for delivery to take its place.

The record in this case shows that the location of this claim was made July 19, 1878, and it is alleged by the applicants that the earliest date claimed as the initiation of the townsite right was February 1, 1879, as shown by the records of your office. But it is immaterial when the respective rights of the mineral claimant and the townsite applicants were initiated, as no title to lands containing known minerals can be acquired under the townsite laws. The townsite patent is inoperative as to all lands known at the time of entry to be valuable for the minerals, or discovered to be such before the occupation or improvement for residence or business under the townsite laws.

In the case of Deffeback v. Hawke, the location of the mineral claim was subsequent to the settlement and occupation for townsite purposes, and a patent issued for the mineral claim without the reservation although the townsite authorities had asserted prior occupation and settlement and insisted before the land office that the patent should be issued with the reservation excluding from its operation all town property, building lots, streets, etc., and all rights necessary and proper to the enjoyment and use of the same.

The mineral claimants rights to a patent rested upon the judgment of the land office approving his entry for patent upon the record showing that said claim was located July 19, 1879, and was in all respects regular and valid.

Upon this judgment he was entitled to a patent for said claim free from any reservation, or terms other than those of conveyance with re

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