DECISIONS RELATING TO THE PUBLIC LANDS. HOMESTEAD ENTRY-SECTION 2294, R. S. BRASSFIELD v. ESHOM. A homestead entry wherein the preliminary affidavit was executed before a clerk of court, without the pre-requisite residence on the land, is voidable only; and the intervention of a contest will not defeat the right of the entryman to cure such defect where he had, prior to said contest, established his residence on the land in good faith. Secretary Vilas to Commissioner Stockslager, January 2, 1889. This is a motion filed by Samuel W. Brassfield, the contestant in the above case, asking for a review of departmental decision of May 26, 1888 (6 L. D., 722), alleging error of law in said decision in holding as follows, to wit, that the homestead entry admittedly illegal and voidable for want of a proper affidavit, is cured and perfected by the establishment of residence upon the entered land, no valid affidavit having been filed as required by express statutory enactment. In this case the homestead affidavit of claimant was taken before the clerk of the district court for Washington county, under section 2294, Rev. Stat., it appearing that at the date of said affidavit neither claimant nor any member of his family was residing upon the land in question. The Department held that said defect was cured by claimant, by establishing residence on the land prior to the contest. The sole question presented in this case, therefore, is whether such defect can be cured by estab lishing a residence prior to contest, or whether an amended affidavit may be filed in the face of a contest, the contestant not alleging or showing settlement or improvement on said tract. In the case of Roe v. Schang (5 L. D., 394), it was held that such defect might be cured by a supplemental affidavit. This case arose upon a contest initiated by Roe against the homestead entry of Schang, and although the insufficiency of said affidavit was not brought in issue by said contest or alleged in the appeal from the decision of the local office, or from the decision of the General Land Office, the Department considering the question on a motion for review, held that said entry was only voidable and might be perfected by a supplemental affidavit made 16184-VOL 8——1 1 before the proper officer. While it was stated in said decision that "the insufficiency of said affidavit was not put in issue in said contest, nor was it alleged in the appeals from the local land office or your office " the ruling of the Department was not placed upon that ground but upon the ground that the entryman had acted in good faith and that there was no valid objection to allowing the entryman to make the supplemental affidavit before the proper officers curing the defect. In the case of Way v. Matz (6 L. D., 257) the Department held that "An entry based on a preliminary affidavit executed before the clerk of a court not authorized to act in such matters is voidable only and the defect may be cured by a supplemental affidavit." In this case each party had made homestead entry of the tract. Way's entry being the first allowed, but Matz' entry was based on a prior settlement. It was contended that Matz' entry was unauthorized by law not having been made before the clerk of the court for the county in which the applicant is an actual resident as required by Sec. 2294, Rev. Stat., but the Department held that this was merely an irregularity which rendered the entry voidable, but that the entryman would be allowed to file supplemental affidavit of qualification before the proper officer. In the case of Schrotberger v. Arnold, (6 L. D., 425) the Department held that an affidavit made before the clerk of a court, without prior residence is only voidable and may be cured in the absence of an adverse claim, but it has not been considered that a contest where the contestant does not allege a settlement or improvement on the tract, or of some other adverse right than the preference right of entry that he may acquire by a cancellation of said claim is such an adverse right as would prevent the claimant from curing the defect, by filing the supplemental affidavit, as ruled in the case of Roe v. Schang, the good faith of the entryman being manifest, and the entryman having made settlement and residence on the land prior to the initiation of the contest. You will notify the claimant that he will be required to file a supplemental affidavit taken before the proper officer, said direction having been omitted in the decision of May 26, 1888. The motion is denied. PRACTICE-SUPERVISORY AUTHORITY OF THE DEPARTMENT. A. C. LOGAN ET AL. The government has always the right to appear before the local office and submit testimony or examine the witnesses offered by the parties. It has also the right to direct the postponement or continuance of a case in order to investigate the same. Secretary Vilas to Commissioner Stockslager, January 2, 1889. The mineral claimants in the above case have filed through their counsel an application for certiorari alleging as follows: That the parties to the above contest, by written stipulation, agreed to a hearing to determine the character of the land involved in the ap |