thereby to illustrate its intent to protect all vested rights that might intervene prior to the application to purchase."

This ruling has been uniformly followed by the Department. Charles C. Martin (3 L. D., 373); Gilbert v. Spearing (4 L. D., 466); Patrick Roderick (4 L. D., 493); Kelly v. Maynard (5 L. D., 592).

As to the other questions suggested in the appeal, the proper time to consider those will be when considering Nuttle's final proof. Your said decision is accordingly affirmed.

FINAL PROOF-EQUITABLE ADJUDICATION.

ANTON A. MOKLEBUST.

In the absence of protest or adverse claim, an entry may be referred to the Board of Equitable Adjudication where the final proof was submitted after the day fixed therefor, and good faith is manifest.

First Assistant Secretary Muldrow w Commissioner Stockslager, September 21, 1888.

I have considered the appeal of Anton A. Moklebust from your decisions of February 16, and April 21, 1887, requiring new publication of notice with relation to his final proof on his pre-emption claim, embracing Lots 6 and 7, Sec. 6, and Lots 1 and 2, Sec. 7, T. 156 N., R. 64 W., Devils Lake district, Dakota.

It appears from the record that appellant gave due notice of his intention to make final proof and payment August 23, 1884, but that the same was not made until September 26, 1884, a period of thirty two days thereafter.

On that date appellant made an affidavit before the register of the district in which he stated that he was not able to offer his final proof on the day advertised "owing to his inability to secure the presence of his witnesses at the land office on account of their absence in another county where they were engaged harvesting." He then asked that his proof might be allowed on that day.

The local officers granted his request, his proof was made, the price of the land accepted, and final certificate duly issued thereon.

The record also shows that claimant resided upon the tract more than six months prior to the date advertised for making final proof and that he continued to reside upon it until June, 1886, when he made a homestead entry of another tract in the immediate neighborhood. He still continues to own and cultivate his pre-emption claim.

Your office letter G, of February 16, 1887, was the first notice claimant received that he must make new advertisement and new proof. This was after he resided in good faith for more than nine months upon his homestead claim, and a compliance with your decision would probably entail a loss of either tract.

It does not appear that any one intended to protest or has since made any objection or adverse claim, although four years have elapsed since proof was made and final certificate issued.

In the absence of any grounds for charging fraud on the part of the entryman and no adverse claimant having alleged that he was misled to his injury by the irregularity mentioned, the case seems to fall within the spirit of Rule 10 of the Rules of Equitable Adjudication. You will, therefore, please certify the case to the Board of Equitable Adjudication for the action of that tribunal.

Your decision is accordingly modified.

PURCHASE BEFORE PATENT--FINAL PROOF.

C. A. KIBLING.

Purchasers after entry and before patent take only an equity, and are charged with notice of all defects in their title.

When a witness is substituted for an advertised witness, new notice and proof covering the testimony of the substituted witness will be required.

When the proof is taken by an officer not named in the advertisement, it must be taken at the time and exact place designated in the printed notice; and the officer advertised to take such proof must officially certify that no protest was filed before him against the claimant's entry.

First Assistant Secretary Muldrow to Commissioner Stockslager, Septem1888.

ber 21,

I have considered the appeal of C. A. Kibling, mortgagee of Francis Lekley, from your decision of December 13, 1886, rejecting the final proof of said Francis Lekley for the E. of the SE., and Lot 4, Sec. 7, T. 113 N., R. 80 W., Huron, Dakota.

It appears from the record that Francis Lekley made homestead entry of the above tract October 15, 1884, and advertised to make commutation proof thereon before judge of probate court in and for Sully county, at Okbajo, Dakota Territory, on Saturday, February 14, 1885."

The testimony of claimant and his two witnesses (only one of whom had been advertised) together with the rest of the proof was taken on the same date before the clerk of the district court of Clifton, same county, the claimant alleging as a reason therefor, that the probate judge was absent at the time.

The claimant, in his proof, alleged that his improvements were of the value of $350. They consisted of a house, twelve by fourteen, stable eighteen by twenty, a well and eight acres of breaking, five of which were planted to tree seed. Claimant stated that he had not been absent at all from the tract, whilst his witnesses testified that he had "not been absent to exceed two days at a time."

Your office, by letter "C" of August 1, 1885, rejected the final proof and directed the local officers to notify ciaimant that he would be allowed sixty days in which to make new proof. The local officers, however, did

not properly notify the claimant of your decision, in that it was not served personally or by registered letter. The notice was mailed to claimant in care of one C. H. Walworth, an attorney, who refused to accept service, on the ground that his former appearance for claimant was "for the purpose of procuring repayment of the purchase money on a portion of his claim to which the government could not convey any title having previously sold the same."

It appears that shortly after making final proof, claimant went to Nebraska, and had not returned at the date of the appeal herein. His former attorney made repeated efforts to find him, but without any apparent success.

No appeal was taken from your said decision within the time allowed, but in March, 1886, C. H. Walworth sua sponte, submitted affidavits in support of his motion for reconsideration.

After considering these affidavits, your office, on December 13, 1886, directed that claimant's original entry be allowed to stand, subject to future proof. You at the same time advised the local officers to duly notify claimant of this decision.

It further appears that claimant, on March 1, 1885, mortgaged said tract to one C. A. Kibling, a resident of Strafford in the State of Vermont, to secure the payment of $300 which he loaned him that day. This mortgage was recorded in the county in which the tract is situated on the 31st of that month and was made fifteen days after proof was submitted and final certificate issued.

January 28, 1887, Kibling, as such mortgagee, appealed from your said decision, alleging various grounds of error and asking that Lekley's final proof, as originally made, be accepted and that patent issue accordingly.

The rulings of this Department and the decisions of the courts, clearly establish the doctrine that as against the government the entryman has acquired no rights until he has performed the preliminary acts required by law. The rule of caveat emptor applies in this case and the purchaser or mortgagee can acquire nothing the original claimant did not possess.

Two weeks after the issuance of final certificate Kibling loaned his money to Lekley and if the latter's entry was either void or fraudulent the security upon which he relied for his investment, proved worthless. He assumed the risk and he must now abide the consequences. He does not seem to have acted without the necessary precaution as he employed counsel to transact this business for him,

All purchasers of lands after entry and prior to the issuance of patents are charged with notice that said entries must be confirmed by your office and that if said entries are void or fraudulent, the purchaser can acquire no better title than the vendor possessed. Purchasers after entry and before patent take only an equity and are charged with notice of all defects in their title. United States v. Johnson et al. (5 L. D., 442).

The claimant in making final proof has not complied with the instructious of circular letter of February 19, 1887 (5 L. D., 426), which prescribes that when witness not named in advertisement is substituted for advertised witness, new notice and proof covering the testimony of substituted witness is required. Also that when final proof is taken by officer not named in advertisement, it must be taken at the time and exact place designated in the printed notice and the officer advertised to take such proof must officially certify that no protest was ever filed before him against claimant's entry. These requirements have not been complied with.

Your decision, therefore, that claimant's original entry be allowed to stand, subject to further proof, is accordingly affirmed.

HOMESTEAD CONTEST-ACT OF JUNE 15, 1880.

CRAIG v. HOWARD.

The right of purchase accorded by section two, act of June 15, 1880, extends only to entries made prior to the passage of said act.

The preference right of a successful contestant is superior to the right of purchase under said act.

First Assistant Secretary Muldrow to Commissioner Stockslager, September 26, 1888.

I have considered the case of E. A. Craig v. W. J. Howard upon the appeal of the latter from your office decision of November 1, 1886, holding for cancellation his cash entry for the NE. 4 of Sec. 11, T. 8 S., R 24 W., Kirwin land district, Kansas.

The records show the following facts.

Howard made homestead entry for the said land May 6, 1881. In November, 1884, Craig instituted contest against him charging that Howard had wholly abandoned the said tract and changed his residence therefrom for more than six months since making entry and next prior to the date of such contest.

A hearing being ordered, and January 28, 1885, appointed for the time of trial, due notice was given therefor by publication.

At time of hearing contestant appeared, the claimant made default. Upon the evidence then adduced by the contestant, the local officers determined that the homestead entry of Howard should be canceled, and he not having appealed on November 10, 1885, your office canceled said entry for abandonment.

Craig on December 3, 1885, made homestead entry for the land.

In the meantime November 16, 1885, Howard made cash entry No. 4362-for the said land under the second section of the act of June 15, 1880.

Your office by the said decision of November 1, 1886, held said cash entry for cancellation for illegality "said homestead entry (meaning

the homestead entry of Howard) having been made after the adoption of the act referred to."

From this decision Howard appealed to this Department and the case is now before me for consideration.

The act of June 15, 1880 (21 Stat., 237), is applicable only to entries made anterior to its adoption. Another reason why Howard's cash entry should be canceled is, that Craig as the successful contestant, had the right to enter said land within thirty days from notice of cancellation of Howard's homestead entry. Craig made his entry twenty-three days after such cancellation.

Your decision is affirmed.

TIMBER CULTURE CONTEST-APPLICATION TO ENTER.

FENNO v. BRADY.

The application to enter, filed by a successful contestant at the initiation of a timberculture contest, when allowed, relates back and takes effect as of the date thereof to the exclusion of all intervening claims.

Commissioner Stockslager to register and receiver, Huron Dakota, January 14, 1886.

By letter of November 1, 1884, Frank E. Brady was allowed a preference right of entry to the NW. Sec. 33, T. 117, R. 60, upon his successful contest of timber culture entry No. 5796, thereon, and his timber culture application for entry was returned to be perfected. You reported that he was notified of the action November 13, 1884. He made timber culture entry No. 6098 same tract December 16, 1884, and you improperly allowed Miles D. Fenuo to enter the same tract per homestead entry No. 9761, February 18, 1885, settlement alleged December 5, 1884, (See Wolfe v. Struble, Copp's L. O. 9, p. 148).

Fenno submitted affidavits upon the suspension of his entry, in which he states that he has made the tract his place of residence ever since date of settlement and has some improvements thereon, and acknowledges that Brady has had five acres broken upon the tract.

A settlement by Fenno prior to December 14, 1884, could not defeat Brady's right which did not expire until that date and I find upon an examination of Brady's timber culture papers an annotation by the register showing that the money was tendered and refused December 13, 1884, and the refusal appears to have been for the reason that it was unaccompanied by an affidavit alleging that he had not since date of the former affidavit, which accompanied the contest papers, made an entry under the timber culture law. It appears therefore that an effort was made to place his claim of record within the required time and was prevented only by a technical defect which I do not consider fatal to his rights, nor should Fenno, who was aware of Brady's contest and who