of King, it is shown by the records of the Department of War and the letter of the genuine Susan King, that the application for the additional homestead was founded on fraud and perjury. The signature "Susan King" appearing in the affidavit for the additional entry and the signature of Susan King in the letter appear not to be in the same handwriting.

The question of the validity of these five cash entries is controlled by the decision in the case of J. S. Cone (7 L. D. 94). It was there decided that the second section of the act of June 15, 1880 (21 Stat. 237) should not be construed to permit an entryman, or his attempted transferee, to purchase land covered by an entry which depended for its incep tive right upon false and fraudulent statements and forged documents. This opinion is still adhered to.

It is argued on the part of the appellant that, inasmuch as the cash entries were made iu compliance with the instructions, and under the direct authority, of your office, and in harmony with the decisions of this Department, the entries should be sustained; that when the entries were made under the act of June 15, 1880, your office was in possession of all the facts, the entries were, therefore, res judicata, and any new and different construction of the statute should apply to cases arising thereafter only.

The attorney of the appellant has failed to refer in his argument to a decision of this Department sustaining a cash entry based upon facts similar to the facts presented in these entries.

As to the question, whether these entries having been made in conformity with your office decisions previously rendered, are res adjudicata, and could not therefore be disturbed, the position taken by appellant's attorney cannot be accepted. Conceding that the legality of these cash entries was res adjudicata so far as your office was concerned when the decision appealed from was rendered, the Secretary of the Interior is not precluded from considering the whole question whenever it comes before him; and if, after a careful investigation he concludes that any entry is illegal, that it should not have been made, he has a right, and it is his duty to say so, and direct its cancellation. For in so doing he is not exceeding his jurisdiction, but is "exercising only that just supervision which the law vests in him over all proceedings instituted to ac quire portions of the public lands" Lee v. Johnson (116 U. S., 48); Charles W. Filkins (5 L. D., 49); Adolph Peterson (6 L. D., 371). Cash entries numbered 8074, 9159, 9160, 9165 and 9194 should therefore be canceled.

The facts in the case of Sizemore's additional entry, upon which cash entry No. 9164 is founded present grounds of suspicion that the party making the additional entry was not James A. Sizemore who made the original entry, but a man falsely pretending to be the latter. I can not conclude that fraud is proven because Sizemore signed his name in legible handwriting in 1873, and the party making the additional entry

in 1875 signed by making his mark. From this fact alone fraud can not be inferred conclusively. Sizemore might have lost his hand or the use of it during the two years intervening between the original and the additional entry.

An opportunity, therefore should be given to Sizemore and the Puget Mill Company, his presumed grantee, to submit to your office affidavits in proof of the identity of the party making the additional entry as James A. Sizemore, who made the original entry.

The remaining cash entry, No. 9161, based upon the soldiers' additional entry of Vaughan, has been considered and the conclusion reached that it should be sustained. The additional entry became illegal by reason of the cancellation of the original entry August 4, 1879. The entryman having failed to make his final proof upon his said original entry within the statutory limit.

By your office decision of December 12, 1884, the parties in interest were allowed to purchase the lands covered by said entry under act of June 15, 1880. The Puget Mill Company put upon the record its deed from Vaughan, dated February 18, 1880, for the said lands. The company made the said cash entry No. 9161 January 15, 1885. Your office canceled the same by your said decision of April 15, 1887.

The said additional entry did not depend for its inceptive right upon false and fraudulent statements and forged documents. The said entry was made prior to June 15, 1880; the land entered was properly subject to entry; there was no adverse claimant, nor had a contest been initiated at the time of purchase. The cash entry therefore should be allowed to stand. Reference is made to the case of J. S. Cone, supra, where comment is made upon the various decisions of this Department relative to the right of purchase under said act. The act was intended to afford relief to those who had failed to comply with the law. Vaughan could have invoked it in reference to his original as well as additional entry, why can not the Puget Mill Company, his grantee, apparently bona fide, be permitted to take advantage of it?

The decision therefore embracing the said cash entries herein considered is, that entries, numbers 8074, 9159, 9160, 9165, and 9194, are canceled, and that entry No. 9161 be sustained and patent issued thereon, and that entry No. 9164 be allowed to stand, but Sizemore and the appellant or either of them is required to submit to your office, within ninety days from the notice hereof, proof by affidavits that the party making the soldier's additional entry, No. 2404, was in fact the identi cal James A. Sizemore, who made the original entry upon which the additional entry was founded; such proof to be taken either at some local office or before a clerk of a court of record, and be accompanied by a certificate of the officer before whom it is taken as to the credibility and standing of each witness. In case such evidence is not furnished within the said period, the said cash entry will be canceled.

Your decision is modified accordingly.

OSAGE LAND-FINAL PROOF.

DELAPP . JACKSON.

As between two settlers on Osage land who were both in default in the matter of submitting final proof within the period required by the regulations, the right of entry must be accorded to the one who was first in settlement and making proof. First Assistant Secretary Muldrow to Commissioner Stockslager, Septem ber 13, 1888.

I have considered the case of James Delapp v. Wm. V. Jackson ou appeal by the former, from your office decision of February 16, 1887, rejecting his final proof under his pre-emption filing for the NW. 1, Sec. 15, T. 34 S., R. 17 W., Larned, Kansas land district, and allowing Jackson's pre-emption entry for the N. NW. and SE. NW., and SW. of NE.said section to remain intact.

This land is a part of the Osage Indian trust and diminished reserve lands.

Jackson filed declaratory statement for the N. 3 NW. † the SE. NW.}, and the SW. 4 NE. of said section April 30th, alleging settlement March 16, 1885.

Delapp filed declaratory statement for the NW. of said section April 15, alleging settlement April 1, 1885.

The statement in said decision that these filings and final proof covered the same tracts is incorrect.

Both parties advertised to make final proof before S. P. Duncan, a notary public at Nescatunga, Kansas, on December 24, 1885. Jackson made his proof on that day and executed the final affidavit before the clerk of the district court of Comanche county the same day. This proof was received by the local officers on December 28, who approved the same, received the payment required at the time of offering the final proof and issued receipt therefor the same day.

Delapp made his proof on the day set therefor and executed the final affidavit before the clerk of the probate court of Comanche county, on December 26th. This proof was received by the local officers on December 28th after they had approved that of Jackson. Delapp's proof was rejected because of the fact that Jackson's proof was first received. Delapp applied for a hearing, alleging a prior settlement by him and that Jackson had not complied with the law. A hearing was had, beginning June 21 and ending August 21, 1886. The local officers found from the testimony that Jackson made a settlement on the land claimed by him on March 16, but that he "never established or maintained a bona fide residence upon the tract in dispute," that Delapp went on the land the last of March but that he had not an actual residence there but made his home with his father who lived at a distance of one and a half miles from this land, and decided that both claims should be rejected.

Both parties appealed to your office where the final proof of Delapp was rejected and Jackson's entry was allowed to remain intact.

The following facts are established by a preponderance of the evidence in the case.

Jackson went on this land and made a settlement there March 16, 1885, as found by the local officers. He proceeded at once to build a house, part dug out and part sod, eleven by sixteen feet, in which he estab lished a residence about the last of April. He caused ten acres of breaking to be done which he planted to corn that season. At date of final proof he had on the land the house above described, a well, ten acres of breaking, forty-eight fruit trees and two hundred forest trees. He seems to have brought himself within the requirements of the law.

Delapp went on the land about the first of April, built a sod and dug out house, dug a well, did about fourteen acres of breaking, of which seven or eight acres were cultivated that season and planted eightyeight fruit trees and five hundred forest trees.

It will thus be seen that the improvements of the two claimants were very much the same in character and amount and that there were equally in default in not making proof within the period prescribed by the regulations, although each was equally in earnest in following up his claim as it is shown that both were there cultivating and improving the land at the date of the hearing, August 21, 1886. Jackson, however, made the prior settlement, completed his proof first and submitted the same, together with the purchase money required at that time before Delapp's proof reached the local officers. Under these circumstances the land should be awarded to Jackson and his entry will remain intact. Delapp's filing will be canceled as to the land in dispute with the privilege of completing his entry for the tract included in his filing which is not involved in this controversy, or relinquishing the same without thereby prejudicing his right to file for other land. Your said office decision is accordingly modified.

HOMESTEAD ENTRY-PROOF REQUIRED OF HEIRS.
SKIDDIE V. COOK.

The heirs of a deceased homesteader are not required to maintain residence upon the land, but to continue cultivating and improving the same until the expiration of the statutory period.

First Assistant Secretary Muldrow to Commissioner Stockslager, September 14, 1888.

I have considered the appeal of Skiddie V. Cook, widow of Charles M. Cook, from your office decision dated April 20, 1887, rejecting her final proof and holding for cancellation homestead entry No. 11,092, for the SW. 4, Sec. 30, T. 16 S., R. 2 W., Montgomery land district Alabama.

The record shows that Charles M. Cook, made homestead entry for said tract December 30, 1880, and established actual residence thereon with his family in the spring of 1881.

On September 1, 1883, special agent Mabson reported that claimant had not complied with the law in respect to residence. September 20, 1884 your office held the entry for cancellation and instructed the local office to "notify Cook that he would be allowed 60 days to show cause why the same should not be canceled."

On August 12, 1884, Cook's entry was finally canceled for failure to show cause.

In December 1884, Cook filed several affidavits praying for a re-instatement of his homestead entry.

In the beginning of May, 1885, your office was informed by a letter from J. P. Knabe, of Montgomery, Alabama, as attorney for the widow of claimant, that Mr. Cook, had died (since filing his application for reinstatement) "of chronic diarrhea with which he had been suffering several years, scarcely able to do anything. His widow and five small children have nothing in the world left them but this homestead. She remained continuously on the land with her husband and children until a few weeks before his death, when she moved him to New Castle where he could have the advantage of better medical attention. She is now again back on the land with the children and prays that the cancellation of the homestead be set aside, and that she be allowed to make final proof at the expiration of the five years.”

On May 15, 1885, your office in reply to said letter wrote to the local officers as follows, viz:

It appears, from the records of this office, and from affidavits submitted, that Cook's application was filed December 30, 1880; that he resided upon the land until the middle of the year 1882. When he went to New Castle, some three miles distant to work at his trade in order to support his family; that he subsequently returned to the land when he was taken sick and at the time the notice that his entry was held for cancellation was received, he was utterly unable to do anything and was supported by charity. In view of the above, and the cancellation of the entry upon the ex parte report of the special agent and that the widow of the claimant is now residing upon the land, no adverse claim having attached, and Mrs. Cook, will be allowed to make proof when she can show five years continuous residence. You will so advise her.

On June 26, 1886, in accordance with published notice Skiddie V. Cook as widow of Charles M. Cook deceased, offered final proof before the clerk of the circuit court for Jefferson county, Alabama, which was transmitted to the local office, and on June 30, 1886, the register endorsed thereon the following: "Held up awaiting result of contest. Signed S. J. Harris, Reg."

On October 1, 1886, the register transmitted the final proof to your office with the following statement, viz:

Sir: Enclosed find final proof of S. V. Cook, widow of Charles M. Cook, who made Ed. 11,092. which we wish to submit for your decision. This proof was filed in June, but held up to await the result of a contest then pending, instituted by