ALLEN L. BURGESS.

Motion for review of departmental decision of January 8, 1897, 24 L. D., 11, denied by Secretary Bliss, September 2, 1897.

RAILROAD LANDS-SECTION 5, ACT OF MARCH 3, 1887.

GRANDIN ET AL. . LA BAR.

In holding that the right of purchase from the government under section 5, act of March 3, 1887, is not restricted to cases in which the purchase from the company was made prior to the passage of said act, but that the protection extended to settlers in the second proviso to said section is limited to settlement made before the passage of said act, the Department recognizes the remedial purpose of said section, and the rule of construction that the proviso, being a limitation of the remedy, must necessarily receive a strict construction.

A settler who is claiming the benefit of the second proviso to said section is not entitled to plead want of notice as to adverse claims through the company, where at the time of his settlement he was apprised of the company's selection, and the record at such time disclosed a conveyance of the land by the company. Secretary Bliss to the Commissioner of the General Land Office, Septem(W. V. D.)

ber 2, 1897.

(F. W. C.)

Edward G. La Bar has petitioned for the exercise of the supervisory power of the Secretary of the Interior, in the matter of the case of Grandin et al. v. La Bar involving the SW. 4, Sec. 7, T. 146 N., R. 50 W., Fargo land district, North Dakota, and that further bearing be afforded him to the end that he may be sustained in his claimed superior right to said tract.

La Bar's claim to this tract is based upon a settlement made October 1, 1857. The land is within the indemnity limits of the grant for the Northern Pacific Railroad company, and was included in its list of selections filed March 19, 1883.

In the contest that arose between La Bar and the company upon his (La Bar's) application to enter the land, the company's selection was ordered canceled and La Bar was permitted to complete entry as applied for. See departmental decision of October 14, 1893 (17 L. D., 406). La Bar thereupon gave notice of his intention to submit final proof, December 30, 1893, being named in the notice.

On December 29, 1893, John L. and William J. Grandin made formal application to purchase this land under the provisions of section 5 of the act of March 3, 1887, (24 Stat., 556), alleging that they had purchased the land from the Northern Pacific Railroad company on September 15, 1876, and on the following day (December 30, 1893), filed a protest against the acceptance of La Bar's proof.

La Bar made proof as advertised, which was duly accepted by the local officers, the protest by the Grandins being overruled, and final certificate issued to La Bar.

In accordance with your office letter of May 4, 1894, the Grandins were permitted to offer proof in support of their application to purchase and La Bar was specially cited to appear.

At the appointed time both parties appeared and hearing was duly held.

Upon the record made, the local officers recommended that La Bar's entry be canceled. Said recommendation was sustained and La Bar's entry held for cancellation by your office decision upon said record, and, upon appeal, your office decision was affirmed (23 L. D.,301). In his petition La Bar states that

I did, on the 1st day of October, 1887, make a pre-emption settlement on said tract. I immediately commenced improvements on the land, built a house thereon into which I moved my family, and I have continued to reside on that land with my family to the present day. It is my only home, and I have on said tract over $3000 worth of improvements, including a house which cost $900, a barn which cost $500, a granary which cost $500, a well which cost $300, and other improvements.

It is not only my home, but all I have, the saving of years of toil and labor, is invested in that land.

When I settled October 1st, 1887, it was wild nor any improvements whatever made thereon. ownership or possession on the land.

prairie, not a sod had been turned, There were no signs or evidence of

I supposed and believed that there was no claim to it by any person or persons except the government and the railroad company, and my settlement and improvements were made in perfect good faith, and were based upon the public orders of the Land Department, stating that these lands were subject to entry.

I earnestly ask your special attention to these facts in relation to my settlement. The railroad company asserted a claim to the tract adverse to mine, and after much litigation the case was finally decided by the Secretary of the Interior on October 14, 1893, in my favor, and he held that I had a right to make final entry and payment for the land (17 L. D., 406).

In compliance with this decision I did on December 30, 1893, make final entry and payment for the tract, and it was at this time that J. L. & W. J. Grandin made application to purchase the tract under the 5th section of the act of March 3, 1887, and notwithstanding the express decision which had been made in my favor by the Secretary of the Interior, awarding me the land, and the fact I had made payment for it, and the fact that I was a settler on the land under the orders of the Land Department, and had resided thereon for years, Secretary Smith did, on August 29, 1896, render a decision cancelling my entry, and awarding the land to the said Grandin (23 L. D., 301).

Now, this petition is filed to ask that you will correct the wrong and injustice inflicted upon me by this action, and to reconsider this case upon the point that was entirely ignored by Secretary Smith in his decision, and upon a point which justifies a rehearing in the case.

An examination of the decision of Secretary Smith shows that no notice was taken of, or any attention given to, the fact that I was a settler upon the land, and was protected by the express provision of law. I ask for this rehearing, not upon the ground that a man can not be a purchaser in good faith from a railroad company who makes payment for his land with the stock issued by the company, which was the only question discussed by Secretary Smith in his decision, but I ask it upon the ground that the land upon which I was a settler was not subject to purchase under the 5th section of the act of March 3rd, 1887, that it could not be thus purchased to the exclusion of my right as a settler in good faith.

The proviso to the 5th section of the act of March 3, 1887, expressly stipulates

that the provisions of said section shall not apply to land settled upon subsequent to December 1, 1882. In other words, lands thus settled upon are excepted from the operation of said section. This provision of the law is clear and explicit, and I submit that it was in accordance with the general tenor of land legislation, which has for its aim and purpose the settlement of the public lands, and the protection of bona fide settlers, who have, upon the faith given to the promises of the government by its citizens, made their homes upon the public lands as I have done.

I am aware that the Land Department has held in some cases that the proviso to the 5th section of the act of March 3, 1887, protecting settlers, does not apply to those who settle after the passage of said act.

In the argument filed in support of the petition, after referring to the rulings of this Department to the effect that a settlement under the second proviso of the 5th section of the act of March 3, 1887, (supra) must have been made before the passage of the act, it is stated— The Department held (22 L. D., 238), that a party who purchased from the railroad company subsequent to the passage of the act of March 3, 1887, is protected by the st.

Let us carry these two rulings to their logical conclusion and see how cruel and unjust it is to hold that a purchaser subsequent to the passage of the act is protected by its provision, but that an honest and bona fide settler is not thus protected.

In the case of Osborn et al. v. Knight (on review), 23 L. D., 216, the contention was made that the decision in the case of Balch v. Andrus, (22 L. D., 238), in effect overruled the previous holdings of this Department on the question as to the right of a settler under the second proviso to said section 5, of the act of March 3, 1887, and in the answer thereto it was stated:

Under the repeated rulings of the Department, a settlement claim initiated after the passage of the act of March 3, 1887, cannot affect the right of the purchaser from the company to make purchase from the United States under the provisions contained in the body of section five of said act (Chicago, St. Paul, Minneapolis and Omaha Ry. Co., 11 L. D., 607; Union Pacific R. R. Co. et al. v. McKinley, 14 L. D., 237; and Swineford et al. v. Piper, 19 L. D., 9).

I can see no reason for changing this holding, nor does the decision of this Department in the case of Balch v. Andrus (supra) make a change necessary.

The fifth section of the act of March 3, 1887, was remedial in its nature, and should be liberally construed to embrace the remedy, viz: the protection of those who had in good faith brought (bought) lands supposed to have passed under a railroad land grant which had, for any reason, been excepted therefrom.

In the case of Balch v. Andrus (supra) it was held:

'That it can make no difference whether the purchase from the company was made before or after the passage of the act of March 3, 1887, if made in good faith, believ ing the title to be good and before the land purchased was held to be excepted from the grant.'

The second proviso to said section in favor of settlers was a limitation upon the right of purchase and should be strictly construed. To hold that it embraced settlements made after the passage of the act of March 3, 1887, would be to offer an inducement to 'jumpers' to settle upon lands held under a title believed to be good, a purpose it cannot be believed was intended by the legislators.

La Bar claims to have had no notice of any claim through the railroad company at the time he made his settlement, but the proof made by the Grandins shows that their deed from the company was recorded as early as March 10, 1877, more than ten years prior to his settlement.

This was constructive notice to La Bar, and as he was apprised of the selection by the company he was put upon inquiry as to whether the land had been sold by it.

While it is unfortunate that he had expended large sums in the improvement of this tract, yet this Department is powerless to afford him protection in the same by patenting to him the land under his entry.

The petition is accordingly denied and herewith returned for the files of your office.

PENNINGTON . NEW ORLEANS PACIFIC RY. Co.

Motion for review of departmental decision of July 27, 1897, 25 L. D., 61, denied by Secretary Bliss, September 2, 1897.

RELINQUISHMENT-VOLUNTARY ACT-AGENT.
KERR. KELLY.

A relinquishment will not be recognized if it does not appear to have been the voluntary act of the entryman.

Under a relinquishment executed without consideration, and for the benefit of one holding a fiduciary relation to the entryman, it is incumbent upon the party presenting the same to show that no advantage was taken of the entryman, if the good faith of the transaction is called in question by him.

Secretary Bliss to the Commissioner of the General Land Office, Septem(W. V. D.) (C. W. P.)

ber 2, 1897.

On February 23, 1886, Thomas Kerr made timber culture entry, No. 1163, of the SW. 4 of Sec. 34, T. 23 S., R. 28, Visalia land district, California. On June 28, 1892, Edward J. Kelly filed an affidavit of contest against said entry, which was received by the local officers, subject to a prior contest then pending against said entry.

On August 30, 1893, Kelly withdrew his contest and filed a relinquishment of said timber culture entry, purporting to be executed by said Kerr on November 29, 1890: whereupon said timber culture entry was canceled on the records of the local office. On the same day Kelly presented homestead application for said land, which the local officers received and held suspended until the final disposition of the pending prior contest.

On September 4, 1893, Kerr filed an application, whereby he asked that his timber culture entry be reinstated on the ground that he never knowingly executed said relinquishment, and if he did execute the same that he was then confined in the hospital of the city and county of San Francisco, California, and was in feeble health, and it was procured by his being deceived as to its nature, and that the same is fraudulent and is not an abandonment duly acknowledged by him.

A hearing was thereupon had before the local officers on September 24, 1895. Upon the testimony submitted the local officers, on October

17, 1895, found that Kerr executed said relinquishment when he was in a very feeble condition; that he did not intentionally execute and deliver it to Kelly, or any one else, to file, and that there is no evidence of its delivery; and they recommend that the relinquishment be set aside and Kelly's timber culture entry reinstated.

On appeal, your office, by decision of April 22, 1896, held that it is plain that this relinquishment had no legal effect; that a relinquishment to be effective must be the voluntary act of the entryman; and that Edward Kelly, the father of Edward J. Kelly, received the relinquishment, while he was Kerr's agent, when he received other papers from Kerr for safe keeping; and that it was not in legal contemplation such an instrument, while it was in his custody, and that no authority is shown, or claimed, authorizing Edward Kelly to deliver the relinquishment to his son, Edward J. Kelly, or to file it himself in the land office, and affirmed the judgment of the local officers.

Kelly appealed to the Department.

The material facts are sufficiently stated in the decision appealed from, and I concur in your office decision that the relinquishment should be set aside and Kerr's timber culture entry reinstated.

In the case of Deming v. Cuthbert et al., 5 L. D., 365, it is held that it is competent for the Department to investigate and determine whether a relinquishment was executed in good faith, or whether the Department has been imposed upon by fraud. And in the case of O'Brien r. Richtarik, 8 L. D., 192, it is said that it is well settled that a relinquishment, to be effective, must be the voluntary act of the entryman.

Kerr swears that the relinquishment was not his voluntary act, and that it was not filed in the local office with his knowledge or consent. And it is not pretended that it was executed by Kerr for a valuable consideration. If it is claimed that it was executed for the benefit of Edward Kelly, without consideration, the testimony shows that at the time Kerr executed the relinquishment, Edward Kelly occupied a con fidential relation to Kerr-that he had been authorized by power of attorney to represent Kerr in the contest then pending against his entry, and it is an established principle of equity jurisprudence, that a party seeking to set aside a gift, or other disposition of property in favor of one who stands in a fiduciary relation to him, is not called upon to show direct fraud, or advantage taken of the confidential relation between them; but that such party ought himself to show that no such advantage was taken; that all was fair; that he received the gift freely and knowingly on the giver's part, and as a stranger might. (Story's Equity Jurisprudence, Secs. 307-308-311-315.)

Edward J. Kelly has not thought proper to call his father, Edward Kelly, as a witness, and it is not shown that no advantage was taken of Kerr, that all was fair. And the defendant Edward J. Kelly does not pretend that he paid anything for the relinquishment. The Department will not sanction such a transaction. Your office decision is affirmed accordingly.