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upon and improvement of the land; while there is abundant and convincing evidence showing contrariwise.

In the case of Benson v. Western Pacific Railroad Company (1 Copp, 37), it was held by this Department that where a bona fide settler had established a residence upon his claim, and was subsequently appointed to an office the duties whereof necessitated his absence from his claim, such absence would not work a forfeiture of his rights, but in the case of Harris v. Radcliffe (10 Copp, 209) I held that

I would regard it as highly impolitic, as well as illegal, to extend the rule beyond cases where an actual residence has been established before the intervention of an adverse right. A rule which sanctions the constructive performance of a duty, upon which rights are dependent by force of positive law, may be properly employed to save rights acquired by a partial performance of such duty, but not to confer rights upon one who has made no effort to perform it.

In the light of the evidence there can be no doubt that McElrath had failed to establish a residence upon the land prior to his appointment as receiver, nor is there a doubt that he has since failed to comply with legal requirements as prescribed by sections 2287 and 2305 of the Revised Statutes as intimated aforesaid. Indeed, a preponderance of testimony shows that up to September 25, 1881, he had not established his residence upon the land, and that his entire family have resided in Miles City, about two miles and a half distant. And although it appears that since the appeal was taken from your decision Carland has withdrawn the same, and also his contest, so that no adverse rights appear to have intervened, the register having certified, under date of August 13 last, that "there are no adverse claims of record;" and although it appears that McElrath filed notice of his intention to make final proof August 2 last (which notice the register duly published pursuant to the provisions of the act of March 3, 1879, 20 Stat., 472), and that he accordingly submitted such proof August 13, I am nevertheless of the opinion that there appear to be no equities to justify any other action in the premises than the cancellation of his entry; for not only was the same made while he was receiver, but it was allowed in contravention of an implied statutory provision prohibiting such entry. Moreover, it appears that the basis of the same, to wit, his declaratory statement, was neither filed by himself nor by his duly authorized attorney in fact, as required by your office regulations. Granting the correctness of your statement that the record shows that McElrath applied to file a soldier's declaratoy statement at the Helena office in May, 1880, it should also be observed that the records of this Department disclose that he was appointed to the office of receiver May 28, 1880, and as hereinbefore stated he filed his soldier's declaratory statement August 9, 1880, and made his homestead entry January 6, 1881, after he had been appointed, and while he was acting as receiver. If such procedure were held to be permissible it would be in contravention of the spirit and reason, and also of the very letter of the statute,

for that unquestionably presupposes that the application to enter had been filed prior to such appointment of one "who has been subsequently appointed a * receiver." Upon such state of facts I can

not refer his entry to the Board of Equitable Adjudication. Your decision is accordingly reversed.

24. LOSS OF CROPS.

ACT OF JUNE 4, 1880-PROOF.

ARNOLD v. COFFEY.

It is competent for a party contesting a homestead entry to show that the entryman, who claimed the benefit of the act of June 4, 1880, on account of the loss of his crop, did not in fact meet with such loss.

Secretary Teller to Commissioner McFarland, December 27, 1883.

SIR: I have considered the case of Charles C. Arnold v. Thomas J. Coffey, involving the SE. of Sec. 1, R. 3, T. 25 W., Bloomington, Nebr., on appeal by Arnold from your decision of August 10, 1882, dismissing his contest.

It appears that Coffey made homestead entry No. 8,412 for said tract on March 31, 1880, and in May following partially put up a cabin and broke some ground. On July 26, 1880, he gave notice to the local officers that he had planted 6 acres of corn in the spring, which had failed because of continued drought, and that he desired to take advantage of the benefits of the act of June 4, 1880 (21 Stat., 543). Said act allowed him, if the statement of fact in his notice were true, to remain absent until October 1, 1881; hence he could not be said to have abandoned the land for six months prior to March 1, 1882. The affidavit of contest alleging abandonment was filed on February 27, 1832, or before the expiration of said six months. You held that a contest will not lie under these circumstances, which is in accordance with my decision in Griffin v. March (10 Land Owner, 67).

But the contestant urges that he has shown that the said act does not apply to this case, because Coffey never in fact planted a crop. This is true only in a negative sense, and I am not satisfied with the proof. But as Coffey is shown to have remained away from the land after October 1, 1881, and to date of the hearing, namely, May 1, 1882, and to have made no defense of his claim, I am of opinion that Arnold should be allowed to show that in fact Coffey never met with "a loss or failure of crops from unavoidable causes" in the year 1880, and so obtain his preference right of entry. You will please order a rehearing for that purpose.

Your decision is modified accordingly

25. MARRIED WOMAN.

REVISED STATUTES, SECTION 2289.

RACHEL M. MCKEE.

A married woman is not authorized by section 2289 of the Revised Statutes to make homestead entry.

Secretary Teller to Commissioner McFarland, June 20, 1883.

SIR: I have considered the application of Rachel M. McKee, dated September 11, 1882, to make homestead entry for the NE. 4 of the NE. of Sec. 32, T. 1 S., R. 66 W., Denver, Col., land district, on appeal from your decision of the 7th of December last rejecting the application on the ground that she is a married woman.

Her attorney, Daniel Witter, esq., has filed an argument with me, to show that section 2289 of the Revised Statutes has not at any time heretofore been properly construed by this Department.

I have carefully considered the questions raised in the case, in connection with the arguments of counsel and your decision; and I am compelled to reach the conclusion that the view expressed by you contains the proper construction of section 2289. This view is in accordance with the practice of the Department since the enactment of the homestead law, and I see no reason whatever for setting it aside. Your decision is affirmed.

CANCELLATION—HUSBAND PERMITTED TO MAKE ENTRY.

MARTHA O. MURRAY.

A homestead entry made by a married woman for the alleged purpose of protecting the family property and securing a home is canceled, but the husband, if qualified, is permitted to make entry and date settlement from the time he went upon the land with his family.

Commissioner McFarland to register and receiver, Montgomery, Ala., November 12, 1883.

GENTLEMEN: I am in receipt of yours of August 17, 1883, transmitting final proof by Daniel Murray, widower of Martha O. Murray, deceased, in support of the latter's homestead entry No. 7,018, April 8, 1876, N. NW. 4, Sec. 12, 9 N., 13 E.

It seems that at date of entry Martha Q. Murray was the wife of the aforesaid Daniel Murray, a fact which the latter does not attempt to disguise; but swears that both he and his wife thought an entry in the name of either was legitimate, &c. That their sole object was to provide a house for the mother and helpless children free and independent of the personal liabilities of the father.

The evidence shows that he, with his wife and five children, made settlement on the land April 1, 1875, more than one year anterior to entry, and has continued to reside upon and cultivate the land ever since, and has valuable improvements thereon.

Although the intent of the homestead law would in the case at bar have been realized by the applicant, yet the manner of procedure varies from that prescribed by law, which variance is fatal to the existing entry, rendering it illegal; therefore, I have this day canceled the aforesaid entry.

You will note the cancellation on your records, and advise the appli cant that if he is qualified he will be allowed to enter said tract; and if there should be public land contiguous thereto, he may include sufficient thereof in his entry to aggregate 160 acres.

In view of the claimant's prior settlement, and the fact that the entry was made for the purpose of protecting their home and improvements, their interests being identical, Murray will be entitled under act May 14, 1880, to have his right relate back to date of settlement made before the inception of his wife's entry.

You will so inform him; also, that the fee and commissions paid on the canceled entry may be refunded upon the proper application therefor.

26. MINOR ENTRYMAN.

CANCELLATION-RELIEF.

W. T. BOSTWICK.

The minor's entry, which was made before his majority, is canceled, but he is allowed to make another entry of the land with credit for settlement from the date he became 21 years of age.

Commissioner McFarland to register and receiver, Gainesville, Fla., January 19, 1883.

16th of March last, case of W. T. Bost

GENTLEMEN: Referring to your letter of the inclosing petition, proof, and other papers in the wick, homestead entry No. 1,729, Gainesville series, I have to state that it appears by the evidence submitted and your report that the homestead party was not of the age of twenty-one years at the date of making his homestead entry, to-wit, July 7, 1875; that he was under the impression that he was entitled to make the entry as the head of a family, he alleging that at that time, and up to the present time, he has supported his mother and two younger children, and did not find out that his entry was illegal until he applied to make final proof in December, 1881. Mr. Bostwick further shows that he has strictly complied with the requirements of the homestead law as to residence upon and cultivation of his entry from the date thereof, never having been absent 4531 L 0- -8

therefrom ten days at any one time, and that he became of age (twenty one years) on the 19th day of February, 1877.

Mr. Bostwick now desires relief, so as to be enabled to secure title to the land upon which his improvements and house are situated; but as his entry is illegal from its inception it will necessarily have to be canceled; therefore, said entry No. 1,729 is hereby canceled, and in view of the good faith shown by Bostwick in the case, you will allow him to re-enter the land, with credit of money paid on the canceled entry, after which, as he is entitled to credit for residence upon the land, under act of May 14, 1880, you will inform him that he may make final proof upon the new entry from the date he became twenty-one years of age to the present time, which will cover the period of five years required by law.

I return herewith the application and affidavit of Mr. Bostwick for a new entry, and you will inform him of the action taken in his case, noting the cancellation on your records.

SOLDIER'S ORPHAN-ENTRY BY GUARDIAN-BENEFICIARY.

Commissioner McFarland to E. J. Records, 430 Walnut street, Philadel phin, October 4, 1883.

SIR: In reply to your letter of the 27th ultimo, I have to advise you that the patent in a homestead entry made by a guardian for the benefit of the minor orphan child of a deceased soldier must issue to the beneficiary, whether he or she is of age at date thereof or not.

27. PATENTED LANDS.

ACT JUNE 15, 1880-RE-ENTRY.

THORP WILLIAMS ET AL.

Lands entered and patented under the general homestead law are not the subject of purchase by the same parties under the act of June 15, 1880.

Acting Secretary Joslyn to Commissioner McFarland, March 19, 1884.

SIR: I have considered the appeal of Thorp Williams, Paul Brothers, and Alfred Billingslea from your decision of May 18, 1883 (10 L. O., 92), declining to allow them to purchase certain lands in the Montgomery, Alabama, land district.

It appears that said lands were entered by said parties under the homestead laws in 1870, and that patents therefor issued to them on April 9, 1878. In April and May, 1883, they severally applied to make cash entry, with tender of fees, &c., for the same tracts, under section 2 of the act of June 15, 1880 (21 Statutes, 237), which was refused by the local officers, and, on appeal, by your office. Their counsel states.

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