It appears from said communication, that in locating his homestead on said lot 4, he supposed that said lot was bordered by the shore of a lake, and acting under this impression, he erected his house at a certain point on lot 4, as he supposed, near the lake, but which is now shown to be upon lot 6. It also appears that lot 4 was patented to Gilbert June 20, 1870, represented on the official plat as extending to the lake, when in reality its north boundary is the old meander line of said boundary shown by exhibit "B," submitted with your communication.

In consideration of the long continued residence of Gilbert on the land now known officially as lot 6, you suggest the following plan for his relief:

1st. That Mr. Gilbert be requested to surrender his patent for lot 4, said patent having been issued under misapprehension as above stated.

2nd. That Mr. Gilbert be advised to amend his description of homestead entry, and make it apply to, and include lots 4 and 6, which contain a total of 127.22 acres. He can probably make the entry, and prove up his claim in one day.

3rd. That patent be issued to him for lots 4 and 6 and that he be protected by this office in all his rights to homestead this tract, whilst complying with the formalities necessary to secure a clear title to the land upon which he has made his home for the last twenty-five years.

Inasmuch as patent was issued to Mr. Gilbert upon his homestead entry made for lot No. 4, I do not see how he can now amend his entry at this date to include lot No. 6; nor do I see from the papers before me, that the patent was issued under a misapprehension, but on the contrary it seems to have been issued in conformity with the entry. If there was any misapprehension it was in the entry and not in the issuance of patent thereon. But after a careful consideration of this case, I am of the opinion that the rights of this party can be fully protected under the 6th section of the act of March 2, 1889, which provides as follows:

That every person entitled, under the provisions of the homestead laws, to enter a homestead, who has heretofore complied with or who shall hereafter comply with the conditions of said laws, and who shall have made his final proof thereunder for a quantity of land less than one hundred and sixty acres and received the receiver's final receipt therefor, shall be entitled under said laws to enter as a personal right, and not assignable, by legal subdivisions of the public lands of the United States subject to homestead entry, so much additional land as added to the quantity previously so entered by him shall not exceed one hundred and sixty acres: Provided That in no case shall patent issue for the land covered by such additional entry until the person making such additional entry shall have actually and in conformity with the homestead laws resided upon and cultivated the lands so additionally entered and otherwise fully complied with such laws.

It appearing that the total acreage of lots 4 and 6 is only 127.22 acres, Gilbert having resided upon said lot for a long period, upon which he has placed valuable improvements and is still residing thereon, I see no reason why he may not make entry of said tract, and why patent may not issue to him upon making proof of compliance with the requirements of said act of March 2, 1889. You will so advise him.

PRE-EMPTION-RESIDENCE-SECTION 2260 R. S.

DAVID LEE.

The inhibition contained in the second clause of section 2260, R. S., is against one who quits or abandons residence on his own land "to reside" on the public land, and does not apply to a case where the pre-emptor had, in good faith, sold the land on which he formerly resided. before establishing actual residence on the pre-emption claim.

The validity of a deed made in good faith from husband to wife is recognized by the Department, if such deed is valid under the laws of the State or Territory in which the land conveyed is located.

Secretary Noble to Commissioner Stockslager, May 17, 1889.

July 8, 1881, David Lee, the appellant, filed declaratory statement, No. 5810, for the N. of NW. of Sec. 4, T. 19 S., and E. of SW. of Sec. 33, T. 18 S., R. 27 W., Wa Keeney district, Kansas, alleging settlement thereon July 5, 1884. Your office, by decision of November 15, 1887, held said filing for cancellation as illegal under the second clause of Section 2260 of the Revised Statutes, which prohibits the acquisi tion of any right of pre-emption under the provisions of the pre-emp tion laws by any person, "who quits or abandons his residence on his own land to reside on the public land in the same State or Territory." The present appeal is taken from said decision.

It appears, that Lee had received final certificate on his homestead entry of another tract, June 10, 1884, and this homestead tract is the "land of his own," his residence on which you hold he "abandoned" to reside on said land covered by his pre-emption filing. He claims, that said homestead tract was not "his own land," within the meaning of the statute, at the time he abandoned residence thereon, because of the following facts, set forth by him in an affidavit called for by your office and filed in support of his present claim, viz:

That in the month of May, 1884, his wife, Emiline M. Lee, received from the sale of property belonging to her, in the State of Ohio, previous to her marriage with affiant, the sum of $200.00, which she loaned affiant and which he invested in cattle; that after submitting said final proof [homestead] on June 10, 1884, and some time between June 15 and July 1, 1884, affiant entered into a contract with his wife for the sale of said homestead, the terms being that he should convey said land to her for the purpose of remunerating her for the $200.00 he had received in May previous, and for the sum of $650 more, which she was to receive as the balance of the proceeds of aforesaid property, in the month of October following, and which she did receive, and in pursuance of said agreement turn over to affiant, and all of which money was invested by affiant in livestock; that Lane county, Kansas, in which said land is situated was at that time very sparsely settled, and there was no notary public or other officer qualified by law to take acknowledgments of conveyances, within twelve miles from affiant, ... he therefore delayed making said conveyance until a later date, although the contract was thoroughly understood between him and his wife and talked over in the presence of M. S. Ketch, a neighbor, as a witness, [who] at a later date received a commission to act as notary public in said county, and was called in to take acknowledgment of said conveyance; that by advice of

parties claiming to know the law on such matters, affiant and his wife then joined in a conveyance of said land to Margaret Rice, his mother-in-law, who on same day and at the same time conveyed said land to said Emiline M. Lee, wife of affiant, the conveyance to Margaret Rice being made merely for the purpose of avoiding direct transfer from affiant to his wife, which at that time he supposed was a legal necessity in order to vest the title securely in his wife in accordance with their contract, entered into in the latter part of June, 1884.

This affidavit was corroborated by the affidavit of said M. S. Ketch, mentioned therein as the notary public before whom the conveyances were acknowledged and as the neighbor who witnessed the original agreement for the conveyance from Lee to his wife, and, also, by the affidavit of the wife, said Emiline M. Lee; and attached to said affidavit was the original deed from Lee to Margaret Rice, dated and ac knowledged February 5, 1886, and marked "filed for record," July 19, 1887, and also "an abstract of title," showing conveyance from said. Margaret Rice to said Emiline M. Lee, dated, acknowledged and "filed for record" on the same days as said first conveyance.

Your office in said decision of November 15, 1887 (from which the present appeal is taken), held on these facts, that, at the date, July 5, 1884, when Lee claimed to have initiated his pre-emption claim by settlement, "he was the actual owner of his homestead claim, by virtue of title acquired June 10 previous and must, therefore, be regarded as having removed from land of his own to make settlement as a pre-emptor."

The contract of Lee for the conveyance of the homestead tract claimed to have been made by him prior to the date of his alleged settlement on the pre-emption tract, being for the sale of land, was covered by section six of the Kansas Statute of Frauds and Perjuries (Com. Laws of Kansas, p. 464), and being in parol, was not enforceable. Your office was, therefore, correct in holding that at the date of his alleged settlement, July 5, 1884, he was still "the actual owner of his homestead claim." It appears, however, from his proof in support of his preemption claim (submitted, November 22, 1886), that while he claims to have made settlement at said date (July 5, 1884), by "commencing to dig a dug out," he did not move his family to the land and commence actual residence thereon until April 20, 1886, about two months and a half after he had made and acknowledged his conveyance of the homestead tract.

There is a recognized distinction in the pre-emption law between "settlement" and "residence." "The terms settlement' and 'inhabits' are both used in section 2259 in the order given, and the language clearly shows the distinction between the terms actual settler and resident, as contemplated in the pre-emption law." Samuel M. Frank (2 L. D., 628.) "An actual settler is one who goes upon the public land with the intention of making it his home under the settlement laws and does some act in execution of such intention sufficient to give notice thereof to the public," United States et al. v. Atterberry

et al. (8 L. D., 176), and cases cited therein, but this "act of settlement, unless followed by actual residence, does not entitle a party to make entry." Elmer v. Bowen (4 L. D., 339). It is true, if the act of settlement be followed in proper time by actual residence, the settler is held to have established constructive residence from the date of settlement. But the disqualification under the second clause of section 2260 of the Revised Statutes is of a "person who quits or abandons his residence on his own land to reside on the public land in the same State or Territory." To constitute abandonment of residence, the act and intent must concur, and it seems clear, that the statute contemplated an actual change of residence by the pre-emptor from land of his own and the establishment of such residence on the land sought to be secured under the pre-emption law. This view is in accord with the reason, as well as the letter of the law, and seems to be recognized in the decision of Secretary Teller, in the case of Martinson v. Rhude, cited by Secretary Lamar in Hunt v. Lavin (3 L. D., 499). In that case Martinson protested against the acceptance of Rhude's proof, on the ground that the latter had moved from land of his own to reside upon the tract in question, but Secretary Teller sustained the claim of Rhude, saying:

It will be seen that at the time Rhude filed he was not a qualified pre-emptor, in that he came within the second clause of section 2260 of the Revised Statutes, but that when he actually established his residence on the pre-emption claim, he was not within the prohibition of said law. (3 L. D., 500).

If, therefore, Lee's conveyance of his homestead tract, which was executed and acknowledged by him, February 5, 1886, was effective to divest him of his title thereto, he had not been the owner thereof for two months and a half before he established actual residence on the pre-emption claim, and at the time he established such residence, April 20, 1886, he was not within the said statutory disqualification.

The validity of a deed made in good faith from husband to wife is recognized by this Department, where such deed is valid under the laws of the State or Territory in which the land conveyed is located. Hatch v. Van Doren (4 L. D.,358.) Under the statute law of Kansas, "a wife may hold property separate from her husband, and may bargain, sell, convey, contract, sue and be sued, and carry on business in the same manner that a married man may" (Gen. Stat., 562), and it is held by the supreme court of that State, that "a wife may, through the intervention of a trustee or third person, buy from her husband, or sell to him, or contract with him, to the same extent, that she may buy from, sell to, or contract with, any other person." Going v. Orus (8 Kan., 87). If, therefore, said conveyance by Lee was bona fide and not resorted to as a mere expedient for evading the law, it was effective to devest him of his title to the land embraced therein.

As was said by this Department in the case of Davidson v. Kokojan (7 L. D., 436), "The relationship between the grantor and the grantee suspicious circumstance, but not of itself sufficient

is a

to justify an affirmative finding of fraud." The other circumstances of this case are consistent with good faith, and due consideration must be given to the presumption that attends the exercise of legal rights. Murdock v. Higgason (6 L. D., 35).

It is shown by Lee's proof, that he with his family (a wife and two children) have resided continuously on the pre-emption tract, since they established residence thereon, April 20, 1886, and his improvements consist of a stone house, sixteen by twenty-four feet, well furnished, a stable fourteen by eighteen feet, two wells and breaking-all of the value of $250.00.

I am of the opinion, that Lee, under the facts disclosed by the record, is not disqualified under the second clause of section 2260 of the Revised Statutes, and there being no other objection, it is directed, that his proof be accepted and entry allowed and passed to patent. The decision of your office holding his filing for cancellation is reversed.

DANIEL MATHER.

On application for recon sideration of the departmental decision rendered May 10, 1887 (5 L. D., 632), a hearing is directed before the local office by order of Secretary Noble, May 17, 1889.

MINING CIRCULAR.*

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 24, 1887.

To Registers and Receivers and Surveyors General:

GENTLEMEN: 1. For reasons stated in decision dated October 31, 1885, in the case of the Good Return Placer Mine, (4 L. D. 221), the Hon. Secretary of the Interior holds that the "circular instructions of 9th December, 1882, and the first requirement of the circular of 8th June, 1883, are erroneous, and the same are accordingly overruled."

2. Said decision also holds

That the annual expenditure to the amount of $100, required by section 2324, Revised Statutes, must be made upon placer claims as well as lode claims.

"3. That compliance with the terms of this chapter,' as a condition for the making of application for patent according to section 2325, requires the preliminary showing of work or expenditure upon each location, either by showing the full amount sufficient to the maintenance of possession under section 2324 for the pending year; or, if there has *Omitted from Volume V.