He claims that said filing was illegal because it was not preceded by settlement and hence cannot affect the legality of the second filing.

Admitting that the settlement was not on the land filed for, it was within the power of the claimant to cure the defect by making settlement upon it at any time before the attachment of an adverse claim. It is not contended that there was any adverse claim, and no reason is shown why he did not make settlement upon the land filed for.

Moreover if he desired the land upon which he had made settlement he could have applied for permission to amend his filing. So far as the record shows there was no reason for preventing the amendment.

When Trebilcock made his declaratory statement he stated that he had made settlement upon the land described therein April 23. It appears that said statement was not a true one.

To permit Trebilcock to make a second filing would be to allow him to take advantage of his own wrong.

Either by making settlement on the tract described in his filing or by amending his filing to embrace the tract actually settled upon, he could have had a filing capable of ripening into an entry. He did neither, but abandoned the tract on which he was living, and filed, and moved on the land in controversy.

In the case of George Osher (4 L. D. 114) it was held that where the record showed that the applicant had made one filing under which, through his own fault, he failed to make final proof the restoration of the pre-emption right would be denied.

Section 2261 R. S. is as follows:

"No person shall be entitled to more than one pre-emptive right by virtue of the provisions of section 2259; nor where a party has filed his declaration of intention to claim the benefits of such provisions, for one tract of land, shall he file, at any future time, a second declaration for another tract."

In the case of Baldwin v. Stark (107 U. S. 463) the supreme court of the United States, construing said section, held that when a party has filed a declaration of intention to claim the right of preemption, he cannot thereafter, at any future time, file a second declaration for another tract.

In the case of Cowan v. Asher, recently decided (6 L. D. 785), it was held that a second filing is not permissible except in cases where the claimant through no fault of his own was unable to perfect entry under the first.

The second point made by the appellant is that the law under which the Osage lands are disposed of contains no provision forbidding the making of a second filing. The act of May 28, 1850 (21 Stat. 143), provides that the Osage trust and diminished reserve lands shall be "subject to disposal to actual settlers only having the qualifications of a pre-emptor."

"The exercise of a right due alone to a pre-emptor is necessarily the exercise of a pre-emption right." Case of Todd Knepple (5 L. D. 537).

When a person having the qualification of a pre-emptor makes one legal filing on Osage land he cannot make a second, for the reason that by making the first filing he has divested himself of the qualifications of a pre-emptor.

For the reasons stated, I affirm your decision holding Trebilcock's filing for cancellation.

REPAYMENT-CASH ENTRY.

W. J. CHAMBERS.

Repayment may be allowed of money paid for land in excess of the area actually embraced within the entry.

Secretary Vilas to Commissioner Stockslager, July 11, 1888.

I have before me the appeal of William J. Chambers from your office decision of February 14, 1887, refusing repayment of $10.75 paid by him, in making cash entry No. 45,400, on account of a quantity of 8.60 acres of land, part of the quantity of forty acres for which said entry was originally allowed on the erroneous supposition that the tract entered contained forty acres, whereas it in fact contained but 31.40 acres.

On June 29, 1886, Chambers made said cash entry for the E. of Lot 3, in the NW. of Sec. 6, T. 29 N., R. 8 W., 5th P. M., Ironton district, Missouri. It being supposed that the tract so entered contained forty acres, the receiver charged and Chambers paid the legal price of forty acres, namely $50. The true area, however, was 31.40 acres, and on February 7, 1887, the receiver, by authority of your office, corrected the cash certificate thereto issued by him, so as to make it show that the entry had been made for only 31.40 acres, at $1.25 per acre, or $39.25 in all.

Your refusal to make repayment of the money exacted and paid for land erroneously assumed to have been included in said entry, is based upon the ground that "the law authorizing repayments does not provide for return of the excess when parties have paid too much money on their entries if the title may be confirmed ". But in my opinion this case is one in which, as respects the 8.60 acres mistakenly supposed to be included in the tract, the "entry was erroneously allowed, and the title cannot be confirmed." To that extent the statute literally applies, and the corresponding proportion of the purchase money ought to be repaid.

Your said decision is accordingly reversed.

HOMESTEAD-ADJOINING FARM ENTRY-ACT OF MAY 14, 1880.

PATRICK LYNCH.

Credit for residence on the original tract may be allowed, under the act of May 14, 1880, in the case of an adjoining farm entry.

Secretary Vilas to Commissioner Stockslager, July 11, 1888.

Patrick Lynch established residence in 1871 upon the NE. 4 of the NW. of Sec. 5, T. 19 S., R. 2 W., S. B. M., Los Angeles district, California, and purchased the same at pre-emption cash entry February 20, 1874. On February 19, 1883, he applied to make adjoining farm entry of the W. of the NW. and the SE. 4 of the NW. of the same sec

tion, township and range. On July 8, 1884, he offered final proof for the tract last described, which the local office rejected on the ground that proof of citizenship was not satisfactory.

The proof was in due course of proceeding transmitted to your office, which, on October 9, 1884, decided:

Without considering the question as to citizenship at this time, I have to state that the proof is rejected because not properly made. The entry is dated February 19, 1883, and claimant must show compliance with the requirements of the statute for five years subsequent thereto.

Claimant, according to his final proof presented, bad (prior to offering said proof) occupied, cultivated and improved the tract since 1875-more than nine years. The reason why he did not earlier make application to enter was because the tract was within the limits of the withdrawal for the benefit of the Texas Pacific Railway Company, and according to the former rulings of your office the entry of odd sections was not allowed. It having afterward been decided, however, that tracts occupied at date of such withdrawal were not affected thereby, he made application and proof as above stated. He contends that his case comes under the third section of the act of May 14, 1880 (21 Stat., 140):

Any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws. . . . . . . . . his right shall relate back to the date of settlement, the same as if he settled under the preemption laws:

In my opinion this contention is correct. I can see no reason why the act of May 14, 1880, should not apply to an adjoining farm entry as well as to an original homestead entry for a full quarter section. Had the claimant made entry of one hundred and sixty acres, and shown resi dence thereon and cultivation thereof for nine years, there can be no question that the provisions of the third section of the act of May 14, 1880 would have been applicable (in the absence of any intervening adverse right). As the claimant was debarred by the fact of owning and residing upon a forty-acre tract from making [adjoining] homestead entry of more than one hundred and twenty acres, the act of May 14, 3263-VOL 7——3

1880, is as applicable to the entry of one hundred and twenty acres as it would have been to an original entry of one hundred and sixty acres. The only remaining question in the case is that of the sufficiency of claimant's proof of citizensbip.

The local officers held "that the proof of citizenship is not sufficient and not in accordance with the rules of the General Land Office, which require a certified copy of the certificate of citizenship." As I find among the papers in the case the claimant's original certificate of citi zenship in connection with and a part of his proof upon making preemption entry of the first forty acre tract, a certified copy of such certificate is not necessary.

For the reasons herein given, I reverse your decision, and direct that patent issue to claimant on the proof already made.

OSAGE LAND-SECTION 2262, R. S.

SUSAN HUNTSMAN.

The law providing for the sale of Osage land does not require, as the pre-emption law does, an affidavit before entry, that the entryman has not made any contract whereby the title he may obtain will inure to the benefit of another.

Secretary Vilas to Commissioner Stockslager, July 11, 1888.

December 23, 1886, you rejected the proof made by Susan Huntsman on the W. of SW. Section 17, the E. of SE. 4 Section 18, T. 33 S.R. 16 W. (Osage Indian trust and diminished reserve land), Larned, Kansas, on the ground that having made a contract to sell the land Huntsman could not make the affidavit required by section 2262, Revised Statutes.

In the case of United States v. Woodbury (5 L. D.,303) it was held that the act providing for the sale of the Osage land does not require, as the pre-emption law does, the making of an affidavit before entry can be allowed, that the entryman has not made any contract whereby the title he might obtain will inure to the benefit of another.

Section 2262 not applying to Osage lands your decision was erroneous. It is accordingly reversed.

FINAL PROOF-SOLDIERS' HOMESTEAD-GUARDIAN,

EDWARD BOWKER.

Final proof made by a guardian, after his ward has reached his majority, cannot be accepted.

Secretary Vilas to Commissioner Stockslager, July 17, 1888.

I have before me the appeal of Edward Bowker from your decision of December 30, 1886, holding that as he, Bowker, came of age on the 31st day of January, 1882, final proof made December 1, 1883, by his former

guardian, under section 2307 of the Revised Statutes, cannot be allowed, and that the final certificate No. 1660, issued on such proof, must be canceled. The land involved is the NW. 4, sec. 26, T. 139 N., R. 63 W., Fargo district, Dakota.

After a careful examination of the case I see no reason for disturbing your said decision, and the same is accordingly hereby affirmed.

As was held in the case of David Thomas (4 L. D., 331) “ the cancellation of the certificate issued upon the proof submitted by the guardian can not, however, bar the right of the beneficiary to make the final affidavit and submit proof," with all the rights and privileges he (would) have had if proof had been offered by him at the date it was offered for him by his guardian."

You will therefore direct the register and receiver to notify Bowker of his right so to make proof within ninety days after notice hereof.

HOMESTEAD CONTEST-DIVORCED WIFE-RESIDENCE.

GATES v. GATES.

The residence of a settler is presumed to be where his family resides.

The contest of a divorced woman against the homestead entry of her former husband, on the charge of abandonment, must fail where the evidence shows that during his absence from the land his family continued to reside thereupon, and that upon his return thereto, the contestant forcibly and unlawfully retained possession thereof.

Secretary Vilas to Commissioner Stockslager, July 19, 1888.

I have considered the appeal of Alouzo Gates from your decision of October 15, 1886, holding for cancellation his homestead entry of February 27, 1880, for the S. of SE. 4, Sec. 13, and NW. of NE. and NE. 4 of NW. 4, Sec. 24, T. 8 N., R. 5 E., B. H. M., Deadwood land district, Dakota.

Contest was instituted by Frances E. Gates June 27, 1885, alleging abandonment, change of residence and failure to settle upon and culti vate said tract.

Contestant is the divorced wife of claimant, having filed her complaint April 3, 1885, alleging desertion and non-support, and was granted a decree of divorce June 27, 1885, the proceeding being ex parte, and upon the day that her decree was granted she instituted contest, alleging abandonment of said tract from October 3, 1882.

The evidence taken at the hearing in the contest before the local office discloses the following facts:

Claimant settled upon the tract in 1878, and commenced plowing. He made his homestead entry February 27, 1880; erected a house, variously estimated at from $900 to $1,500. He married the contestant at Deadwood, Dakota, December 5, 1880, and took her to his homestead in the spring of 1881, where she has ever since resided continuously,