able diligence in pursuit of his rights. There are no equities on the side of Chappell; the facts in the case were fully stated to his attorney, who deliberately decided to run the risk of applying for the tract notwithstanding the prior application of Mahin.

It is to be observed, however, that the evidence now before the Department is wholly of an ex parte character-the affidavit of Mahin and the statement of the register; Chappell has not been heard from in the case. You will therefore order a hearing in the case, at which Mahin will be given an opportunity to substantiate the statements made in his affidavit, and whereto Chappell will be cited to show cause why his entry should not be canceled.

RAILROAD GRANT-OFFERED LAND.

POINTARD v. CENTRAL PAC. R. R. Co.

An unperfected settlement claim for offered land, existing at the date the graut becomes effective, held sufficient to except the land therefrom.

Secretary Lamar to Commissioner Sparks, January 27, 1886.

I have considered the case of Auguste Pointard v. The Central Pacific Railroad Company, as presented by the appeal of said company from the decision of your office, dated March 6, 1884, rejecting its claim for the SE. of Sec. 27, T. 13 N., R. 7 E., M. D. M., Sacramento land district, California, and allowing Mrs. Pointard to make homestead entry of said tract.

The record shows that the land in controversy is within the limits of the grant by act of Congress, approved July 1, 1862, (12 Stat., 489,) to said company, the right whereof to the public lands in the odd numbered sections is held to have attached by filing its map of definite location on June 1, 1863.

On July 10, 1883, Mrs. Pointard made application to enter said tract, basing her claim upon the allegation under oath, duly corroborated, that long prior to the date of said grant, and at the time when the right of said company attached, the land was occupied and cultivated by a duly qualified settler entitled to pre-empt said tract, which claim served to except said tract from said grant. At a hearing, duly ordered, Mrs. Pointard appeared, with her witnesses, and offered testimony in support of her claim. The company was represented at the hearing by counsel. From the testimony submitted at said hearing, the register and receiver were of the opinion that Mrs. Pointard had sustained her allegations, and should be allowed to enter said tract. Upon appeal, your office affirmed the action of the district land officers, and held the selection of said tract for cancellation.

It was strenuously insisted by the resident counsel for said company, upon an application for review of said decision, that said claim relied 1819 L D--23

upon by Mrs. Pointard was for offered land, and under the ruling of this Department in the case of said company v. Orr (2 L. D., 525,) the claim had become extinguished and could not serve to except the land from the grant.

The case above cited is not exactly similar to the one under consideration, and if it was, it has been subsequently modified by the decisions of this Department, notably in the case of said company v. Wolford's heirs (3 L. D., 264), wherein it was held that although Wolford failed to file for the tract at the date when the right of said company attached, yet he had a valid pre-emption claim at that date, which served to except the land from the grant. To the same effect are the decisions in the case of Emmerson v. said company (3 L. D., 117), and on review, (idem.; 271).

A careful examination of the whole record discloses no reason why said decision should be reversed, and the same is accordingly affirmed.

PRACTICE-APPEAL.

FULTZ v. Elder.

The case being dismissed by the local office, on the motion of the contestee, and no appeal taken therefrom, it was error to thereafter hold the entry for cancellation, and a further hearing is accordingly ordered.

Secretary Lamar to Commissioner Sparks, January 25, 1886.

I have considered the contested case of George A. Fultz v. William A. Elder, on appeal by the latter from your office decision of December 3, 1884, holding for cancellation his homestead entry for the SW. of Sec. 13, T. 1 N., R. 25 W., Bloomington, Nebraska.

Elder made entry October 20, 1879, and on April 12, 1884, Fultz gave notice of contest, alleging abandonment.

Notice issued citing the parties to appear at the local office on May 23, 1884, and furnish testimony concerning said alleged abandor.ment, and appointing a certain notary public to take testimony at Beaver City, Nebraska, on May 20. On said last date contestant submitted his testimony at Beaver City, claimant not appearing. The allegations therein set forth, if true, clearly warrant a cancellation of the entry. The testimony was received at the local office on May 22, and on the following day-the day set for trial-claimant appeared specially, and filed motion to set aside the notice in the case, for the reasons:

1st, The notice does not state the land office at which said entry was made.

2d, The return to said notice does not show the place of service. 3d, There is no certificate showing that the notary administering the oath to the person who made said return was a notary.

The local officers sustained said motion and set aside said notice.

The record fails to show any further proceedings at that date. The papers were transmitted to your office, endorsed, "Decision in favor of contestee. No appeal taken July 24, 1884," and signed by both local officers. On examination of said papers, and in the absence of an appeal by contestant, your office held that the register and receiver erred in setting aside said notice; that the notice was sufficient, and that the testimony warranted a cancellation, and thereupon held said entry for cancellation. I concur in the finding that said notice was sufficient, and that the local officers erred in holding otherwise. The land office at which said entry was made is stated; and the seal of the notary attached to said affidavit is sufficient in this case. But the fact remains that the local officers sustained the motion to set aside the notice, and the effect of that action was to dismiss the contest as it then stood. Claimant was not obliged to take further action in the matter until served with notice of appeal. No such appeal was ever taken.

The action of your office in holding said entry for cancellation under such circumstances was erroneous, and is hereby set aside; and said decision, in that far, reversed.

Claimant states, in an affidavit filed on appeal, that the allegations of abandonment are false; that he rested on the decision of the local office, and that he believed said prosecution had been abandoned, until he was served with notice of your office decision. This case is further complicated by the fact that on November 10, 1884, claimant submitted his final proof, and the local officers approved the same and issued final certificate, No. 5410, to Elder. This action was not communicated to your office until after said decision of December 3, 1884.

You will instruct the local officers to notify the parties hereof, and to fix another day for hearing, according to the rules of practice, at which testimony may be taken as to the charges in the original affidavit of contest. Said final certificate, pending such contest, will be suspended.

PRE-EMPTION-QUALIFICATION OF SETTLER.

HATCH v. VAN DOREN.

Under the laws of Dakota, a deed from the husband to the wife is permissible, and a conveyance so made by the pre-emptor, apparently in good faith, prior to his filing, followed by a conveyance of record to a third party, before the inception of an adverse claim, removes any objection to the pre-emption claim under the second clause of section 2260 Revised Statutes.

Secretary Lamar to Commissioner Sparks, January 27, 1886.

I have considered the case of Elmer A. Hatch v. Thomas H. Van Doren, as presented by the appeal of Hatch from the decision of your office, dated October 10, 1884, affirming the action of the district land officers in awarding the NW. of Sec. 18, T. 106 N., R. 52 W., Mitchell land district, Dakota Territory, to Van Doren.

The record shows that Van Doren filed his pre-emption declaratory statement upon said tract on December 20, 1880, alleging settlement thereon same day. On March 8, 1881, Hatch made homestead entry of said tract. Van Doren gave due notice by publication, in which Hatch was specially cited to appear before the register and receiver and show cause why Van Doren's final proof and payment should not be received. At the time and place designated, both parties appeared with their witnesses, represented by counsel, and offered testimony. It was alleged by Hatch that Van Doren was not qualified to make said settlement, for the reason that he moved from land of his own to reside on the tract in question, and that he had not resided upon the land as required by law. It appears that Van Doren made homestead entry of the NE. of Sec. 12, T. 106 N., R. 53 W., and final certificate issued thereon September 11, 1880. On the same day, as appears from a duly certified copy of the record, Van Doren conveyed said tract, by warranty deed, to Amelia Van Doren, his wife. Said deed was duly acknowledged on the same day and filed for record on January 26, 1881. On March 1, 1881, Mrs. Van Doren conveyed the tract covered by said homestead entry to one Philip H. Harth, which conveyance was duly acknowledged and filed for record with the proper cfficer on March 4, 1881. On March 8, 1881, Hatch made homestead entry for the tract embraced in Van Doren's said filing. The testimony shows that the real consideration for said deed to his wife was a liability incurred jointly with said Harth by reason of signing an appeal bond to reverse a judgment for the sum of five hundred dollars recovered against said Van Doren. Said judgment was affirmed in the district court of said Territory and the land was conveyed to Harth, as aforesaid.

It does not appear that said conveyance by Van Doren to his wife was fraudulent. The laws of said Territory permit the husband and wife to contract with each other (Dakota Code, Vol. 2, p. 753, Sec. 79), and the conveyance to Harth was of record prior to the time when Hatch made his homestead entry, and he was charged with notice of its contents.

It is strenuously insisted that the residence was not such as the preemption laws require. The evidence is conflicting on this point. It is shown that Mrs. Van Doren was in bad health for some time prior to March 3, 1881, when she died, and was buried on the pre-emption claim of her husband. The preponderance of the proof shows that from the time of his wife's death, which was prior to the date of Hatch's entry, Van Doren's residence was continuous upon the land in controversy up to the time of making his proof, which was for a period of more than seven months. The register and receiver so found, and your office af firmed their finding. There does not appear to be any good reason for disturbing the decision of your office that the land should be awarded to Van Doren.

Said decision is therefore affirmed and Hatch's entry will be canceled.

REVIEW DENIED.

CLARK v. TIMM.

Motion for review of departmental decision of October 6, 1885 (4 L. D. 175), denied by Secretary Lamar, January 29, 1886.

RAILROAD GRANT-PRIVATE CLAIM.

SANSOM v. SOUTHERN PAC. R. R. Co.

Under the general rule that the judgment of a court cannot be attacked in a collateral proceeding, the question as to whether the Department had legal jurisdiction of the matters formerly acted upon herein, will not be entertained. Specifically defining the exterior boundaries of the Rancho Azusa and determining the settlement of the claim therefor, it is held in conclusion that said claim was sub judice until May 29, 1876, when patent issued thereon, consequently that the odd numbered sections within the common limits of said claim and the grant of March 3, 1871, to the company were in reservation and did not pass under said grant.

Secretary Lamar to Commissioner Sparks, January 30, 1886.

I have considered the case of Elias Sansom v. Southern Pacific Railroad Company, involving the NW. of Sec. 7, T. 1 S., R. 10 W., S. B. M., Los Angeles land district, California, on appeal by the company from your office decision of December 31, 1883, permitting Sansom to make pre-emption filing for the land described.

The tract is within the twenty miles (granted) limits of the grant of March 3, 1871, (16 Stat., 579,) to the company, which became effective April 3, 1871, and the withdrawal for which was made May 10, 1871. Township plat was filed in the local office April 21, 1877. April 19, 1883, Sansom applied to make pre-emption filing, alleging settlement October 31, 1881.

The decision appealed from held that, as shown by the records of your office," said tract of land was within Azusa Rancho at the date of the railroad grant, and was not excluded therefrom until May 29, 1876, the date of the patent of the final survey of said rancho; and under the Newhall-Sanger decision (92 U. S., 761), and the excepting clause of the act, was excepted out of the railroad grant." The authority cited as a basis for such conclusion was the decision rendered February 5, 1883, by the Department, in the case of Eberle v. Southern Pacific R. R. Co. (10 C. L. O., 13), which involved land in the same section as that now in dispute.

The main ground of objection to the decision is found in the allegation contained in the appeal, "that the land involved herein is not within the claimed limits of the Azusa Rancho."

The finding of fact by your office decision is thus directly traversed by the appeal, and presents for my consideration a question which can