ing that its payment was extended by Jordan to await determination of this contest. Jordan, immediately after his sale, rented the land from Lown and cultivated it for his own use, and has furnished money and also signed a joint note with Lown for the expenses of the contest.

Lown applied to enter the tracts at the date of filing Jordan's relinquishment and of initiating the contest, and deposited with the register $14 (furnished through Jordan), for the fees and commissions on his entry, and was advised by this officer that his entry would be made of record on cancellation of Jordan's entry, of which he would be notified. Annotations on the local records show that your cancellation of this entry was "Received May 7, 1879, 9 a. m., notices May 7 and 8, 1879, 4 p. m.," and a clerk in the office testifies that notice thereof and of Lown's preferred right was mailed and directed to him about that date, at his post-office address. Lown denies his reception of this notice, or that he knew of Jordan's cancellation until after Criswell's entry.

Criswell immediately after his entry built a house upon the land, in which he has since continuously resided, and has made other valuable improvements.

Lown acquired no preferred right to enter the tract by virtue of his purchase (even were that a bona fide transaction), nor by reason of his - deposit of fees and commissions with the register prior to cancellation of Jordan's entry, the register's reception thereof being an unauthorized act, as held in the case of Hodges (Copp, January, 1881), and it is im material as respects the right of Criswell that Lown did not (even admitting it) receive notice of cancellation of Jordan's entry. He did not offer to make entry of the tracts within a reasonable time after can. cellation of Jordan's entry, but, not exercising ordinary diligence and inquiry as to his rights, permitted the tracts to lie vacant for nearly six months prior to Criswell's entry.

I am of the opinion (without reference to the question of Lown's good faith and whether or not his proposed entry was in the interest of Jordan, and therefore fraudulent under the law, as the testimony would seem to indicate) that the tracts were subject to Criswell's entry when made, and that it should be sustained.

I affirm your decision.

PRACTICE-NOTICE BY PUBLICATION.

RYAN v. STADLER.

An affidavit for contest stating that the whereabouts of the entryman is unknown is not sufficient basis for publication of notice in a contested case.

Secretary Teller to Commissioner McFarland, May 21, 1883.

SIR: I have considered the case of Philip Ryan v. Henry Stadler, involving the latter's homestead entry made July 9, 1880, upon the W. of the NE. and the SE. of the NW. of Sec. 33, T. 32, R. 12 E.,

Menasha, Wis., on appeal by Stadler from your decision of May 13, 1882, holding his entry for cancellation, and also refusing his application for a rehearing of the case.

It appears that Ryan instituted this contest September 26, 1881, alleg. ing Stadler's abandonment of the tract; notice thereof was given by publication, the contestant swearing that "the present residence of Henry Stadler is to me unknown." Practice rule 12 provides that "Notice may be given by publication alone, only when it is shown by affidavit of the contestant, and by such other evidence as the register and receiver may require, that personal service cannot be made." I approve your ruling of January 27, 1883, in the like case of Hewlett v. Darby (Copp, March, 1883), wherein you held that as the affidavit failed to show that personal service could not be made, but merely alleged want of knowledge of the whereabouts of the defendant, and that as diligence is of the essence of such a proceeding, and no effort was made to ascertain the residence of the respondent, notice by publication was insufficient.

Notice to Stadler in this case, by publication only, was insufficient for the same reason.

The motion for rehearing (supported by affidavits) shows that Stadler erected a house on the land in the spring of 1881, and broke and culti vated a small parcel thereof; that he has not at any time been absent from the tract for the period of six months, and only for the purpose of acquiring the means of livlihood, and of improving the land; and that he has no other home. He did not appear, nor was he represented at the hearing, not having received any knowledge thereof until the day of hearing, when several miles distant from the local office, and when too late to make an appearance.

I modify your decision, and direct that a rehearing be ordered. When report of the additional testimony is made, you will re-examine the case in connection therewith.

CONTESTEE-NOTICE-PURCHASE, ACT JUNE 15, 1880.
BYKERK V. OLDEMEYER.

The local officers, after the hearing, dismissed a contest for abandonment; on appeal by the contestant, the General Land Office reversed said action; contestee appealed to the Secretary, and, pending consideration of said appeal, made offer to purchase under the act of June 15, 1880. Held, that he had the right of purchase under said act.

Secretary Teller to Commissioner McFarland, June 23, 1883.

SIR: I have considered the case of Andrew Bykerk v. Gerrit J. Oldemeyer, involving homestead entry No. 16,306, of the N. of SE. of Sec. 18, T. 7, R. 7 E., Lincoln district, Nebraska, on appeal by Bykerk from your decision of July 15, 1882, in favor of Oldemeyer.

It appears that the defendant made the entry June 14, 1878. Bykerk initiated contest against the same January 4, 1881, by filing the usual affidavit alleging abandonment, pursuant to the provisions of section 2297 of the Revised Statutes, and of the 2d section of the act of May 14, 1880 (21 Stat., 140). Whereupon citation issued the same day summoning the parties to appear at the local office the 10th of February ensuing. Upon the evidence thus adduced the register and receiver dismissed the contest February 22. Contestant having appealed from such action, you reversed the same April 29, 1882. From this action Oldemeyer appealed July 5 ensuing, filing with his appeal an application to purchase the premises under the second section of the act of June 15, 1880 (21 Stat., 237). Whereupon you rendered the decision in question, holding, under authority of my immediate predecessor's decisions of March 12, 1881, in the case of Gohrman v. Ford (8 Copp, 6), that the entryman (Oldemeyer) had the right to purchase at any time prior to the cancellation of his entry.

It is urged, however (inter alia), by Bykerk's counsel that the decis. ion cited is inapplicable to the case at bar, because in that case the defendant had applied to purchase before trial, which was never had, whereas in this case Oldemeyer permitted it to go to trial, and did not apply to purchase until after the rendition of your adverse decision. But it should be observed that the decision cited not only holds that the said acts of May 14 and June 15, 1880, are not in pari materia, but it is very explicit upon the subject of the entryman's right of purchase, as will be seen from the following citation:

If the contest proceeds to its finality, to wit, the cancellation of the entry, his preference right of entry is thereby established. But if through failure to prove his allegations, or any of the ordinary incidents of trial; or if the homestead party avails himself of the right of purchase of the tract, as provided by the act of June, and thus defeats the cancellation of his entry, I see no reason why the contest should not fail, and the contestant lose his right of entry.

Under this and other laws relating to homestead entries, a person may now continue residence on and cultivation of his land for the time required by law; or he may at any time, in the absence of other rights or claims, purchase the same on payment of the Government price; and I cannot think Congress intended this right should be subjected to the delays and uncertainties of contests oftentimes instituted for oppressive and fraudulent purposes; but that, whenever such person tendered to the Government its price for the land, and the rights of no other person are affected thereby, he should be permitted to purchase the same.

The doctrine thus enunciated was reiterated by this Department, under date of June 2, 1881, in the case of Johnson v. Halvorson (8 Copp, 56).

Your decision is accordingly affirmed.

ACT JUNE 15, 1880-CONSTRUCTION OF AGREEMENT-R. S. 2290.

HAWKER v. FOWLKS.

The written agreement to convey at a future time is not such an instrument as is contemplated by the second section of the act of June 15, 1880, but is in contravention of section 2290, Revised Statutes.

Secretary Teller to Commissioner McFarland, July 5, 1883.

SIR: I have considered the case of Robert Hawker v. John W. Fowlks, involving the NW. of Sec. 22, T. 2 S., R. 1 E., Salt Lake City, Utah, on appeal by Hawker from your decision of October 27, 1881, holding the entry of Fowlks for said NW. 4 intact, and the cash entry of Hawker for the N. of said NW. 4, under the act of June 15, 1880, for cancellation.

It appears that John Fowlks, father of the contestee, made homestead entry of said NW. May 8, 1869, that the entry was canceled for relinquishment by your letter of July 20, 1871, but the cancellation was not noted on the local records until reception of your subsequent letter of November 23, 1873; and that John W. Fowlks made homestead entry of the tract February 27, 1874.

Hawker filed an affidavit February 15, 1879, alleging that, with his family, he had continuously resided on the N. of the NW. since the fall of 1869, and had valuable improvements thereon, and that Fowlks had never been in possession thereof, but had agreed to convey the tract to him. A hearing was ordered thereon, and held in April following.

It further appears that in June, 1881, the local officers allowed Hawker to make cash entry for the N. of the NW. 1, under the second section of the act of June 15, 1880.

Hawker's possession of said N. is not seriously questioned, but the issue is chiefly confined to the alleged contract, which is in the following words:

BIG COTTONWOOD, SALT LAKE Co.,

April 7, 1874. ·

This is to certify that I, John W. Fowlks, my heirs and assigns, do promise and agree to give to Robert Hawker a full warrantee deed to the north half of northwest quarter of Sec. 22, in T. 2 S., R. 1 E., containing 80 acres, not later than June, 1879. In consideration whereof, I, Robert Hawker, my heirs and assigns, agree to let the homestead entry on the above-named quarter of section be completed and the patent to issue therefor.

Witness:

JAMES HAWKER.

JOHN FOWLKS.

This paper seems to mean that Fowlks would convey to Hawker the N. of said NW. if Hawker would not contest Fowlks' entry on the NW. 4. It was given to Hawker at the date thereof, and has been in

his possession from that time to the date of the hearing. Upon the day of its execution, John Fowlks and John W. Fowlks, at the request of the contestant Hawker, went to the latter's house, for arrangements relative to said N. . They were accompanied also by Alfred, the brother of John W., but who appears not to have been present when the paper was executed. They there met the contestant, Rose his wife, and James Hawker, his son. The paper was written by James Hawker, who testifies that he left blanks in the body of the instrument for the signatures of John W. Fowlks and Robert Hawker. The Hawkers, father, son, and wife, testify that John W. Fowlks and Robert Hawker signed their names in the appropriated spaces after it was read to them; that John W. Fowlks in signing his name omitted the letter "W," but that upon his attention being called thereto, wrote said letter by interlineation. On the contrary, the Fowlks-father and son-testify that John W. Fowlks could not then write his name and did not sign the paper, but that John Fowlks only signed it, and they claim that the letter "W" was interlined afterwards by some person to them unknown, and that that name was not intended to mean John W. Fowlks, but John Fowlks only, thus making a contract between John Fowlks and Robert Hawker, and excluding any agreement on the part of the homestead entryman. This statement, if true, would show that John Fowlks was a mere witness to his own signature. John Fowlks and James Hawker admit their signatures as witnesses.

The testimony further shows that John W. Fowlks is an illiterate person; that his father signed his name to his original homestead papers (but at his request and in his presence), and has generally transacted for him his business matters.

This conflict of testimony requires elucidation from collateral facts. It appears that Robert Hawker had, at the date of the hearing, been in possession of the N. of said NW. from about October, 1869; that he had thereon two houses, a stable and other outhouses, 200 rods of ditching, and about 30 acres under cultivation; that he bought these improvements or a portion of them from John Fowlks, and procured the relinquishment of the latter's entry, intending himself to enter the whole NW. upon cancellation of that entry, but upon the understanding that after he had procured title, he should convey the S. to Fowlks, and retain the N. only. The cancellation was delayed for some years, as stated, but as soon as he learned of it, in April, 1874, he went to Fowlks for the purpose of completing the arrangement and making his entry, when he ascertained that it had been entered by John W. Fowlks.

It appears also that in 1876 a measurement was made by John W. Fowlks for the purpose of establishing the dividing line between the N. and the S. of the NW. 4, and that he drove stakes to indicate the same. He has also admitted to others that the N. belonged to Hawker, and that he had given him (Hawker) a paper securing it to him after he got his own title. He also negotiated with Hawker for purchase from him of