on the 5th of April last he made application and purchased the land embraced by said homestead entry for cash, No. 1480, Gainesville series. It now appears by the petition presented by Dewhurst that he desires to relinquish the SE. of NW. 1, or S. of lot. 1, embraced in his homestead entry, and have refunded to him the amount of purchasemoney paid thereon. Furthermore he desires to have the area of the tracts retained by him computed according to the actual topography of the land as shown by the recent coast survey, which represents that quite a portion of the NE. † of NW. ‡ or N. of lot 2, and SW. of NE. is covered by navigable water, and that the purchase money for that portion actually covered by water not shown by the official plat of surrey also be refunded.

On examination of the official plat of survey in this office I find that there is quite a difference between said plat and the map of coast survey filed by Mr. Dewhurst; but in view of the fact that no evidence of fraud in the original survey has been presented, nor any evidence that said survey did not correctly represent the character of the lands at the date thereof, to wit, March 1, 1848, and the lands having been disposed of regularly under such survey this office has no authority of law to enter upon the resurvey or direct a resurvey of the lands in question.

In relation to the request of Mr. Dewhurst to be allowed to relinquish a portion of his entry as above indicated, and have the purchase money refunded thereon, I have to state that he having decided to take the benefit of said act of June 15, 1880, and having paid the gov ernment price, as stipulated by the provisions of said act, there is no authority in law whereby this office can refund the purchase money paid on any portion of the land.

HOMESTEAD ENTRY-DEVISEE.

SARAH LEONARD.

A homesteader cannot by will defeat the law, which provides that in case of the death of both father and mother, leaving minor children, the homestead right shall inure to their benefit. In this case a feme sole devised her homestead to her son and died. Held that in such cases, in order that the devisee may obtain title it must appear satisfactorily that no infant children survived.

Commissioner McFarland to Hon. W. D. Washburn, House of Representatives, January 13, 1882.

I am in receipt of your letter of the 9th instant, inclosing one from John Carmody, esq., dated Princeton, Minn., January 4, 1882, respecting the delay in issuance of patent in Taylor's Falls, Minn., homestead entry No. 1831, final certificate No. 1369, for N. of SE. and SE. of SE. 1, 14, 35 N., 27 W. 4th P. M.

This entry was made July 19, 1871, by Sarah Leonard, who, on the 25th day of May, 1874, executed a will devising all her right, title, and interest in the land described to her son, John Carmody. The will was probated and declared valid by the probate court of Sherburne County, Minnesota, October 5, 1878, and on the 7th of that month the said John Carmody was duly appointed administrator of the estate of Sarah Leonard, deceased.

November 26, 1878, John Carmody, as devisee, made final proof as prescribed by section 2291 of the Revised Statutes, and final certificate and receipt were issued by the register and receiver on that day in his

name.

Section 2292, Revised Statutes provides that "in the case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children," and it is held by this office that a homestead party cannot will away the right of infant children thus guaranteed by express statutory provision.

The final proof in this case does not show whether or not infant children survived the homestead party, and in the adjudication of such cases it is an official requirement that the proof shall be explicit upon this point, that the object of the law may be fully secured and that the orphans may be protected in their legal rights.

The issuance of patent in the entry described has therefore been deferred until the question pertaining to the survival of infant children shall be satisfactorily determined. Upon the receipt of testimony upon this point, properly transmitted through the district land office, the case will receive due consideration and such action will be taken in the matter as may be warranted by the facts.

PRACTICE-SECOND CONTEST-PREFERENCE RIGHT OF ENTRY.

BENNETT v. COLLINS.

Where a second contest against a homestead entry was initiated before the determination of a prior contest, and the entry in question was canceled as a result of the first contest, the second contestant has no preference right of entry should the first contestant fail to make entry. The preference right cannot be transferred or assigned.

Commissioner McFarland to register and receiver, Grand Forks, Dakota, January 13, 1882.

I am in receipt of your letter of the 22d November last, transmitting testimony and proceedings in the case of Richard Bennett v. Lizzie Collins and Edmund Demers v. Lizzie Collins, both cases involving homestead entry No. 1337 SE. 4, 150, 51. Bennett filed his affidavit of contest on the 26th of May, and Demers on the same day, but at a later hour. The case of Bennett is therefore entitled to be first considered.

The proceedings appear to be regular, and upon the testimony presented you decided that the entry should be canceled.

The cancellation of the entry resulting from the first contest, the subsequent one by Demers necessarily falls and the testimony therein is not considered.

You ask, in connection with these cases, should Bennett fail to make entry of the land within the period allowed him for that purpose by the act of May 14, 1880, or should he waive his right as contestant, would the tract be subject to entry by the first legal applicant, or should Demers have the preference.

The right allowed a contestant by the act of May 14, 1880, is a personal one and cannot be transferred or assigned. Neither is it a bar to an entry of the land by another party, at any time subsequent to the cancellation of the contested entry.

An entry allowed within the period during which the contestant's right attaches would, however, be forfeited should he present his appli cation within the time allowed him for that purpose.

In the case in question the first legal application for the land should be received and made of record, and should Bennett fail to exercise his right of entry under the law it would be allowed to stand.

Demers could claim nothing by virtue of the contest instituted by him.

HOMESTEAD-RESIDENCE-SECOND CONTEST.

NICKALS T. BIRD ET AL.

In the cases of two homesteaders who entered land within the inclosure of an occupant, and were prevented from establishing permanent residence on the same within six months from date of entry because of threats of the occupant, and a decision of the local land officers, in a contest brought by the occupant, in favor of the latter, rendered within the six months and thereafter set aside: Held, on second contest brought by the occupant on the ground of abandonment, that time should not run against the homesteaders during the period from date of said decision of the local officers and the date that the same was set aside, and that therefore inasmuch as abandonment for a period of over six months from date of entry could not be shown, the entries were not subject to attack under section 2297 of the Revised Statutes.

Commissioner McFarland to register and receiver, Eureka, Nevada, Janu. ary 13, 1882.

I am in receipt of your letter of October 24, 1881, transmitting the testimony taken at hearings held at your office July 11 and 12, 1881, with a record of the proceedings in the contested cases of William W. Nickals v. the parties to the following homestead entries involving the entries, to wit: No. 159, March 23, 1880, Thompson J. Bird SW. Sec. 17, 20 N., 52 E.; No. 161, March 23, 1880, Peter Winn, SW. 4 of SE. Sec. 17, N. of NE. Sec. 20, and NW. of NW. Sec. 21, 20 N., 52 E.

The entries were attacked by Nickals on the ground of abandonment, by affidavits filed April 21, 1881, a period of a year and nearly one month after date of the entries.

It appears that Nickals has fenced a tract containing about 1,000 acres, and that the tracts in said entries are almost entirely within the inclosure.

Nickals states that Bird appeared on the outside of the fence about the 27th or 28th of September, 1880, and commenced the construction of a small house, which was found partly finished a few days after, and situated within the inclosure, and that in May, 1881, Bird again appeared and put a canvas roof on the house. Nickals also states that a spring had been cleared out and a ditch opened, requiring about two days' work. Although the testimony of Nickals is to the effect that Bird did not make settlement until the 27th of September, 1880, his statement is not very positive as to the date, and is unsupported by his witnesses. On the other hand Bird testifies positively that he commenced building the house on September 20, 1880, and that he was on the land in March and May, 1881, and, in June, 1881, went thereon and remained there. Bird is positive from dates and circumstances that he commenced improving the tract on the 20th of September, 1880. At the latter date, six months from date of entry had not expired. Bird states that the land having been in litigation and the decision of your office against him he felt unable to risk expenditure thereon sufficient to establish a permanent residence upon the tract until informed of the decision of this office in his favor in April, 1881. Bird referred to the previous contest of Nickals against Burbank, Bird, Winn, et al., which will be referred to further on.

The testimony in the case of Winn shows that he conveyed lumber to the land embraced in his entry May 24, 1881, and that he was then threatened with violence by Nickals, in consequence of which he, Winn, left the lumber and returned to Eureka. On June 5, 1881, Winn commenced the erection of his house on the land, but it appears that he was unable to finish it previous to the hearing, because of sickness and poverty, and sought shelter with Bird, who lived in the vicinity. Winn was sick nearly all the time from August, 1880, until May, 1881, part of the time being in the county hospital. These facts were not disputed on trial, cross-examination being waived and no evidence adduced in rebuttal. It would appear, therefore, that it was impossible for Winn to have made settlement for a period commencing about five months. after entry and ending subsequently to the initiation of the contest in April, 1881.

Bird and Winn claim under the homestead statutes for the benefit of soldiers and sailors.

You decided that the defendants had failed to comply with the requirements of the homestead law in respect to residence, citing in your opinion as to Bird's case the decision of the honorable Secretary of the Interior in the case of Byrne v. Catlin (2 C. L. L. 406), in which it was

held that going upon the land by the homestead claimant and remaining over night once or twice in six months fails to establish the residence contemplated by the homestead law. Defendants took an appeal from your decision.

The prior contest of Nickals against the parties above mentioned was made on the ground that the lands, being inclosed and in the possession of Nickals, were not subject to homestead entry. This contest was commenced April 5, 1880, less than one month after the entries were made, and on August 31, 1880, before the expiration of six months from date of entry, you rendered a decision adverse to the homestead parties. The decision of this office dismissing the contest, dated March 31, 1881 (Copp's L. O. for July, 1881, p. 57), which became final, reached your office on or about April 15, 1881, in which month the present contest was commenced. It therefore appears that the homestead claimants were embarrassed by the possession of Nickals and the adverse decision of your office, rendered within six months from date of entry and not set aside until a few weeks prior to the initiation of the present contest. When the first contest commenced, in April, 1880, there was ground for apprehension as to the result upon the part of defendants, in view of the decisions then followed; besides, upon the decision of your office in August, 1880, there was danger of ejectment by due process of law in case of inhabitation of the tracts by them. I do not think that it has been shown, as you conclude, that the "element of good faith" has been lacking on the part of defendants. The case of Byrne v. Catlin, cited by you, is not analogous to the ones under consideration. On account of the circumstances mentioned I think that time should not run against the defendants.

I have mentioned testimony relating to a period of time subsequent to the initiation of this contest, not as relevant to the issue, but in order that my ruling may be the better understood. It being held that time should not run against the defendants up to April, 1881, it follows that the entries at the time of the contest in said month were not subject to attack on the ground of abandonment under section 2297 of the Revised Statutes. Your decision is reversed for the reason given.

HOMESTEAD ENTRY-RELINQUISHMENT.

EDWARD EZERNACK.

Relinquishment of homestead entry because of conflict and to avoid contest, does not prevent party from making another entry.

Commissioner McFarland to register and receiver, Natchitoches, La., Feb. ruary 2, 1882.

Referring to your letters of June 23, September 3, and December 3, 1884, in the matter of homestead entry No. 2010, of Edward Ezernack, made March 1, 1881, for the E. of NE. and S. of NE. † Sec. 20, T.