« ForrigeFortsett »
The register and receiver will not accept any application for extension under said resolution until the party shall have in due course submitted final proof on his claim and the same shall have been found satisfactory by them; and should any such application be made prior to the submission of the proof and their favorable finding thereon, they will reject the application, so advise the applicant, and inform him that he acquired no right thereby under said joint resolution.
2. After application received in accordance with the foregoing rule, the register and receiver will note upon their records in pencil that the same has been filed, and transmit it, together with the testimony filed in support thereof, and the final proof submitted and found satisfactory by them, as above, accompanied by their report, and await further instructions.
3. Thereafter they will allow no filing or entry for the land covered by the claim sought to be perfected until decision of this office on the pending application.
4. The register and receiver will be careful to distinguish between an application under said joint resolution for an extension of time for payment and an application for leave of absence under the act of March 2, 1889 (25 Stat. L., 854).
Applications under these instructions will be made special. (See case of Parker v. Brown, 20 L. D., 323.)
Additional extensions of time to make payment have been provided as follows:
Act of February 26, 1896 (29 Stat. L., 16), extending for one year the time for making proof and payment for all lands located under the homestead laws in any former Indian reservation in South Dakota.
Act of June 10, 1896 (29 Stat. L., 342), granting to homestead settlers on all ceded Indian reservations an extension of one year to make payment.
Act of June 7, 1897 (30 Stat. L., 87), granting a further extension of one year to make payment to settlers on all ceded Indian reservations.
Act of July 1, 1898 (30 Stat. L., 595), extending the time to make payment until July 1, 1900, to settlers on all ceded Indian reservations.
The homestead laws secure to qualified persons the right to settle upon, enter, and acquire title to not exceeding one quarter section, or 160 acres, of public land, by establishing and maintaining residence thereon and improving and cultivating the land for the continuous period of five years.
A homestead entryman must be the head of a family, or a person who has arrived at the age of 21 years, and a citizen of the United States, or one who has filed his declaration of intention to become such, as required by the naturalization laws, to which section 5 of the act of March 3, 1891 (26 Stat. L., 1095; Appendix No. 44, p. 221), attaches the condition that he must not be the proprietor of more than 160 acres of land in any State or Territory.
Applicants to make homestead entries were restricted by section 2289, Revised Statutes, to "unappropriated public lands upon which such person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption," but the act of March 3, 1891, which repealed the preemption laws, so amended said section 2289 as to describe the class of lands subject to homestead entry simply as "unappropriated public lands."
The homestead law originally required the applicant in all cases to
appear personally at the district land office and present his application (Form No. 4-007, p. 274), and to make the required affidavits before the register or receiver. This requirement was modified by the provisions of section 2294, Revised Statutes, and a further change was made by the amendment of said section by the act of May 26, 1890 (26 Stat. L., 121; Appendix No. 38, p. 213).
The said act modified the requirements of previous general laws by allowing parties who are prevented "by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district land office" to make the preliminary affidavits for homestead entries within the county or parish before any commissioner of the United States circuit court having jurisdiction over the county or parish in which the land desired is situated, or before the judge or clerk of any court of record of such county or parish, and to transmit the same, with their applications and the proper fees and commissions, to the register and receiver of the district land office, thus permitting entries to be effected without personal attendance at the district office by any parties availing themselves of its provisions.
The act of March 2, 1895 (28 Stat. L., 744; Appendix No. 64, p. 239), provides for additional officers in the Territories, to be known as United States court commissioners, before whom the preliminary affidavits in homestead entries may be made in like manner as provided in the act of May 26, 1890.
The office of United States circuit court commissioner ceased to exist June 30, 1897, under act of Congress of May 28, 1896 (29 Stat., 184, Appendix No. 70, p. 242), which provided for the appointment of United States commissioners by the district court of each judicial district, to have the same powers and perform the same duties as the commissioners of the circuit courts whose office was abolished.
Applicants availing themselves of the privileges of the said acts will be required to transmit with their applications an affidavit setting out specifically why they can not appear at the district office in person to make their preliminary homestead affidavits.
A person in active service in the Army or Navy of the United States, whose family or some member thereof is residing on the land which he wishes to enter, and upon which bona fide settlement and improvement have been made, may by special enactment make the affidavit required by law before the officer commanding in the branch of service in which the applicant is engaged. (Sec. 2293, Rev. Stat.; Appendix No. 1, p. 154.)
A false oath taken before a clerk of a court under section 2294, Revised Statutes, or the proper officer under section 2293, or under the said acts of May 26, 1890, March 2, 1895, and May 28, 1896, is perjury, the same as if taken before the register or the receiver.
Where a wife has been divorced from her husband or deserted, so that she is dependent upon her own resources for support, she can make homestead entry as the head of a family or as a femme sole.
A single woman who makes a homestead entry and marries before making proof does not by her marriage forfeit her right to make proof and receive patent for the land, provided she does not abandon her residence on the land to reside elsewhere. Where two parties, however, unite in marriage, each having an unperfected homestead entry, both entries can not be carried to patent. A residence elsewhere than on the land entered for more than six months at any one time is to be treated as an abandonment of the homestead entry under section 2297, Revised Statutes. (Appendix No. 1, p. 155.)
APPLICATION FOR A HOMESTEAD.
To obtain a homestead the party should select and personally examine the land and be satisfied of its character and true description.
He must file an application, stating his name, residence, and postoffice address and describing the land he desires to enter (Form 4-007, p. 274), and make affidavit (Form 4-063, p. 275) that he is not the proprietor of more than 160 acres of land in any State or Territory; that he is a citizen of the United States, or that he has filed his declaration of intention to become such, and that he is the head of a family, or over 21 years of age, as the case may be; that his application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person, persons, or corporation, and that he will faithfully and honestly endeavor to comply with all the requirements of law as to settlement, residence, and cultivation necessary to acquire title to the land applied for; that he is not acting as agent of any person, corporation, or syndicate in making such entry nor in collusion with any person, corporation, or syndicate to give them the benefit of the land entered, or any part thereof, or the timber thereon; that he does not apply to enter the same for the purpose of speculation, but in good faith to obtain a home for himself, and that he has not directly or indirectly made, and will not make, any agreement or contract in any way or manner, with any person or persons, corporation, or syndicate whatsoever, by which the title which he might acquire from the Government of the United States should inure in whole or in part to the benefit of any person except himself; and, further, that since August 30, 1890, he has not entered under the land laws of the United States, or filed upon, a quantity of land agricultural in character, and not mineral, which, with the tracts now applied for, would make more than 320 acres, and that he has not theretofore had the benefit of the homestead laws, and must pay the legal fee and that part of the commissions which is payable when entry is made.
On compliance by the party with the foregoing requirements, the receiver will issue his receipt for the fee and that part of the commissions paid (Form 4-137, p. 275), a duplicate of which he will deliver to the party. The matter will then be entered on the records of the district office and reported to the General Land Office.
HOMESTEAD SETTLERS ON UNSURVEYED LANDS.
A homestead settler on unsurveyed public land not yet open to entry must make entry within three months after the filing of the township plat of survey in the district land office. (Act May 14, 1880, 21 Stat. L., 140; Appendix No. 15, p. 174.)
In cases of simultaneous applications to enter the same tract of land under the homestead laws, the rule is as follows:
First. Where neither party has improvements on the land the right of entry should be awarded to the highest bidder.
Second. Where one has actual settlement and improvement and the other has not, it should be awarded to the actual settler.
Third. Where both allege settlement and improvements, an investigation must be had and the right of entry awarded to the one who shows prior actual settlement and substantial improvements, so as to
be notice on the ground to any competitor. (Report of General Land Office for 1866, p. 19; also case of Helfrich v. King, 3 Copp's L. O., p. 164.)
RESIDENCE OF APPLICANT MUST BE STATED.
The applicant must, in every case, state in his application his place of actual residence and his post-office address, in order that notices of proceedings relative to his entry may be sent him. The register and receiver will note the post-office address on their tract books. (See Rules of Practice No. 14 and No. 17, as amended May 26, 1898.)
INCEPTIVE RIGHTS OF HOMESTEAD SETTLERS.
An inceptive right is vested in the settler by the proceedings hereinbefore described. He must, within six months after making his entry, establish his actual residence in a house upon the land, and must reside upon and cultivate the land continuously in accordance with law for the term of five years. Occasional visits to the land once in six months or oftener do not constitute residence. The homestead party must actually inhabit the land and make it the home of himself and family, as well as improve and cultivate it.
At the expiration of five years, or within two years thereafter, or, in case of entries existing at the date of the act of July 26, 1894 (28 Stat. L., 123; Appendix No. 49, p. 230), within three years thereafter, he may make proof of his compliance with law by residence, improvement, and cultivation for the full period required, and must show that the land has not been alienated except as provided in section 2288, Revised Statutes (sec. 2291, Rev Stat.; Appendix No. 1, p. 154), as amended by section 3 of the act of March 3, 1891 (26 Stat. L., 1095; Appendix No. 44, p. 221).
The period of continuous residence and cultivation begins to run at the date of actual settlement, in case the entry at the district land office is made within the prescribed period (three months) thereafter, or before the intervention of a valid adverse claim. If the settlement is on unsurveyed land the latter period runs from the filing of plat in the district land office. (Act May 14, 1880, 21 Stat., 140; Appendix No. 15, p. 174. See circular of October 21, 1885, 4 L. D., 202.)
CULTIVATION IN GRAZING DISTRICTS.
In grazing districts, stock raising and dairy production are so nearly akin to agricultural pursuits as to justify the issue of patent upon proof of permanent settlement and the use of the land for such purposes.
A settler desiring to make final proof must file with the register of the proper land office a written notice, in the prescribed form, of his intention to do so, which notice will be published by the register in a newspaper, to be by him designated as nearest the land, once a week for five successive weeks, at the applicant's expense.
Applicants should begin to make their proofs in sufficient time to complete and file them in the local office within the statutory period of seven (or eight) years from date of entry. (See pp. 14 and 34.)
The final affidavits and proof may be made before the register or receiver or before any United States commissioner appointed under
section 19 of the act of May 28, 1896 (29 Stat., 184; Appendix, No. 70, p. 242), for the judicial district embracing the county or parish in which the lands are situated, or before the judge or clerk (not necessarily the clerk in the absence of the judge) of any court of record of the county or parish in which the lands are situated (act May 26, 1890, 26 Stat. L., 121; Appendix, No. 38, p. 213), or before any United States court commissioner appointed under the provisions of the act of March 2, 1895 (28 Stat. L., 744; Appendix, No. 64, p. 239); but the proof can not be made outside of the county, unless before the register or receiver, or unless the lands are situated in an unorganized county, when the proof may be made in an adjacent county, as held in Secretary's decision of October 2, 1890, in case of Edward Bowker, 11 L. D., 361.
Proofs can only be made by the homestead claimant in person, and can not be made by an agent, attorney, assignee, or other person, except that in case of the death of the entryman proof can be made by the statutory successor to the homestead right, in the manner provided by law.
HEIRS OF A HOMESTEAD SETTLER.
Where a homestead settler dies before the consummation of his claim, the widow or, in case of her death, the heirs may continue settlement or cultivation, and obtain title upon requisite proof at the proper time. If the widow proves up, title passes to her; if she dies before proving up and the heirs make the proof, the title will vest in them. (Sec. 2291, Rev. Stat.; Appendix No. 1, 154.)
Where both parents die, leaving infant children, the homestead may be sold for cash for the benefit of such children, and the purchaser will receive title from the United States, or residence or cultivation may continue for the prescribed period, when the patent will issue to the children. (Sec. 2292, Rev. Stat.; Appendix No. 1, 154.)
Upon the death of a homsteader who leaves no widow, but both adult and minor heirs, the right to perfect entry passes alike to all the heirs. See Bernier v. Bernier (147 U. S., 242).
A homestead right can not be devised away from a widow or minor children.
In case of the death of a person after having entered a homestead, the failure of the widow, children, or devisee of the deceased to take up residence on the land within six months after the entry, or otherwise to fulfill the demands of the letter of the law as to residence, will not necessarily subject the entry to forfeiture on the ground of abandonment. If the land is cultivated in good faith the law will be considered as having been substantially complied with. (Tauer v. The Heirs of Walter A. Mann, 4 L. D., 433.)
HOMESTEAD CLAIMANTS WHO BECOME INSANE.
The rights of a homestead claimant who has become insane may, under act of June 8, 1880, be proved up and his claim perfected by any person duly authorized to act for him during his disability. (21 Stat. L., 166; Appendix No. 18, p. 177.)
Such claim must have been initiated in full compliance with law, by a person who was a citizen or had declared his intention of becoming a citizen, and was in other respects duly qualified.
The party for whose benefit the act shall be invoked must have become insane subsequently to the initiation of his claim,