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money paid on pre-emption cash entry No. 177 of the N. of NE. 1, Sec. 10, and N. of NW. 1, Sec. 11, T. 10 N, R. 10 W., you are advised that the records of this office show that Chaves filed declaratory statement October 4, 1873, alleging settlement January 25, 1870, and made final proof December 3, 1875, per certificate No. 177, October 25, 1873. Chaves also made homestead entry No. 189 for lots 4, 5, and 6, Sec. 3, 10 N, R. 10 W. T. 10 is within the granted limits of the withdrawal for Atlantic and Pacific Railroad Company, May 18, 1872.

On June 16, 1876, the claimant was called upon to furnish a pre-emp. tion affidavit, covering time up to date of certificate Chaves furnished an affidavit made before a notary public, in which he stated that he did reside constantly upon the said land from June 1, 1863, to September 21, 1881.

April 2, 1883, a report was called for to show whether Chaves was the same party who made homestead entry No. 189, and in response thereto Chaves relinquished his entry and applied for repayment of the purchase-money. Said entry was canceled on the 4th instant, on the relinquishment of the party. At the date of Chaves' settlement there were no adverse rights attached to the land in question. From the evidence before me it is very evident that Chaves did not make said entry in good faith. Had he complied with the law under which his entry was made, the United States could have confirmed the same; it was therefore not by fault of the Government that said entry was canceled, and I have to decline to recommend the return of the purchase-money asked for.

Notify the party in interest and sixty days are allowed for appeal.

C. A. LINSTROM.

The party having removed from his own land and made pre-emption cash entry in same Territory, thereby not being a qualified pre-emptor, his entry was canceled. On application for repayment of purchase-money, it appearing that he made proof, which, if true, showed him a qualified pre-emptor, held that the entry was not erroneously allowed, but fraudulently made, and that there is no law allowing re. payment.

Secretary Teller to Commissioner McFarland, February 4, 1884. SIR: I have considered the appeal of C. A. Linstrom from your de cision of June 14, 1883, declining repayment of the money paid by him on his pre-emption cash entry No. 2512, Sioux Falls, Dak.

It appears that appellant had homesteaded a tract of land in Dakota, in 1874, and that in 1875 he made settlement on and declaratory filing for another tract in Dakota, and in 1878 made the cash entry aforesaid. It was afterward discovered that he had removed from his own land to reside on the public lands in the same Territory," and, as he was not a qualified pre-emptor under section 2260, Rev. Stat., his entry was can

celed May 4, 1880. Thereupon he applied for the repayment, which was refused on the ground that the act of June 16, 1880 (21 Stat., 287), does not apply to his case, for the reason that, as he had failed to show said removal in his final proofs, "it was no fault on the part of the Government in allowing the entry," and it was therefore not erroneously allowed."

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I have examined appellant's final proofs, and I find that, though he himself did not swear to nonremoval, he did produce two witnesses who swore that he "did not remove from his own land within the Territory of Dakota." This was the evidence he offered of his right to preempt the tract, and on it the entry was allowed. Had he not deliberately falsified the facts entry would not have been allowed. It was not error to allow it on these proofs, for they were the proofs which the law and the regulations required. Hence, this case does not fall within the act of June 16, 1880. I know of no law authorizing the repayment of purchase-money where the entry has been obtained by fraud. Your decision is therefore affirmed.

JENS STOHL.

The Secretary of the Interior is authorized to grant repayment where public land has been erroneously sold, or an entry erroneously allowed or canceled for conflict. Where the sale or entry might be confirmed except for defect or fraud in the proofs, and there is no error on the part of the United States, he has no such authority.

The entry of Stohl was cancelled for his own laches (having been held fraudulent). Repayment is therefore not allowed.

Secretary Teller to Commissioner McFarland, February 11, 1884.

SIR: I have considered the appeal of Jens Stohl from your decision of June 8, 1880, rejecting his application for repayment of purchase, money paid on cash entry No. 1545 for the SE. of Sec. 6, T. 15, R. 4, Salt Lake City, Utah.

Stohl made homestead entry of the tract May 14, 1872, and commuted the same to cash March 11, 1876. Upon allegations of fraud in his proofs Secretary Schurz, June 19, 1877, ordered an investigation of the facts, and in view of the testimony your office, September 15, 1879 (concurring with the local officers in the opinion that the allegations were sustained), held the entry for cancellation, and in the absence of appeal it was cancelled January 20, 1880.

The Secretary of the Interior is authorized to grant repayment in cases where public land has been erroneously sold or an entry has been erroneously allowed or cancelled for conflict, so that the sale or entry cannot be confirmed (Section 2362, Rev. Stat., and act of June 16, 1880). Where the sale or entry might be confirmed except for defect or fraud in the proofs of the entryman, and there is no error on the part of the

United States, the Secretary has no such authority. As the case of Stohl shows that his entry was canceled by reason of his own laches or fraud, without fault by the Government, repayment of his purchase-money is not allowable.

I affirm your decision.

4. BONUS FOR TIMBER-CULTURE ENTRIES.

CHARLES M. PRICE.

Price and another applied simultaneously to make timber-culture entry of the tract, and it was awarded to Price as the highest bidder for the privilege of entry; having availed himself of the same, and the entry being valid, there can be no return of the bonus paid therefor.

Commissioner McFarland to register and receiver, Huron, Dak., May 9, 1883.

GENTLEMEN: I am in receipt of your letter of 31st March last, inclosing a petition from Charles M. Price, by his attorney, L. W. Crofoot, relative to the return of the bonus charged him in making timber-culture entry No. 983. In reply I have to state that it appears from your letter and the petition of Price that said Price and one David L. Stick simultaneously filed applications to enter the SW. of Sec. 13, T. 113 N., R. 76 W., under the timber-culture law.

Under the rulings of this office, where parties simultaneously file applications for the same land under the timber-culture law, the tract thus filed for shall be put up at auction by the register, and the party who bids the highest price shall have the privilege of entering the

same.

In this case Price availed himself of this privilege, and he being the highest bidder his application was accepted.

As this is a valid entry there can be no return of the bonus paid thereon.

CYRUS A. Gorgas.

Where three applied to make timber-culture entry, and the preference was put up at auction, on notice, through inadvertence, to only two, and bid in by one of those notified, at $10.50; afterward, the omission of notice to the third applicant being discovered, the sale was set aside and the right reoffered on full notice, and bid off by the same party as before, at $148. On application for repayment of the difference between the first and last bids the action of the local office is approved and repayment is declined.

Commissioner McFarland to register and receiver, Huron, Dak., July 13,

1883.

GENTLEMEN: In further reply to your letter of 31st May last, in the matter of the petition of Cyrus A. Gorgas to have returned to him a

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portion the money paid as a bonus for the privilege of entering the SE.Sec. 20, T. 115, R. 62, as a timber-culture entry, I have to state that it appears from your report of the 28th ultimo that C. A. Gorgas, G. W. Thomas, and one Pettes, were contestants to enter the abovenamed tract as a timber culture entry. When you advised Gorgas and Thomas when said tract would be put up at auction you overlooked the application of Pettes, and consequently did not advise him when the sale would take place.

At the time appointed by you, the tract was auctioned off, and the preference right to enter said tract was bid in by Gorgas, he being the highest bidder, at $10.50. After the sale was closed, you then discovered the application of Pettes, which had been put away with other papers, and you immediately notified all the parties in interest that Pettes being one of the contestants, and his application was overlooked, that you would have to declare the sale void in order to give Pettes an opportunity to bid as a contestant. All parties acquiesced in your proposition, and you then again put the tract up to the highest bidder; again was Gorgas the successful bidder, and it was bid in by him for $148. Gorgas now protests against your proceedings, and asks that the difference between the first bid of $10.50 and the second bid of $148, viz, $137.50, be refunded on the ground that the second time the tract was put up the auction was illegal.

This office approves your action in the matter, and declines to grant the request of the petitioner Gorgas. Notify all parties in interest, and allow the usual time for appeal.

OZRA M. WOODWARD.

Where two parties applied for right to contest a timber-culture entry, and to make entry of the tract; and one of the two, though protesting against the legal right of the other to compete, bid in the preference right in controversy, paid the amount bid, and then claimed to recover back the same, on the ground that his competitor's offered entry was illegal, and all his own rights were saved by his protest: Held, That the decision denying repayment should be affirmed. Where one voluntarily pays money on an illegal claim, with full knowledge of the facts and without compulsion, he cannot recover it back.

Secretary Teller to Commissioner McFarland, December 27, 1883.

SIR: I have considered the appeal of Ozra M. Woodward from your decision of May 1, 1883, refusing to approve his application to the regis ter and receiver at Huron, Dak., for the repayment to him of certain moneys.

It appears that Woodward and one Lovell simultaneously made ap plications on March 10, 1883, to contest a timber culture entry for failure to comply with the law during the first year, and to enter the land for themselves, and that the local officers directed that they should bid

for the preference right, under authority of the case of Theodore Kimm (7 Land Owner, 181).

But Woodward protested against this, and demanded that his application should be received, and Lovell's rejected, on the ground that the latter's affidavit (bearing date of March 9, 1883, which was the last day of the first year) showed on its face that it was executed prior to the time that a right of contract could attach, and that the defect was fatal. He was overruled by the local officers, and, still protesting, bid some $55, which he paid to them, thus securing the preference right.

Now Woodward sets up that he saved all his rights by the protest, and he claims the right to recover back the money so paid on the ground. that Lovell's entry was illegal as aforesaid. In support of his claim he cites various authorities to sustain the proposition that a party in an action who objects, and is overruled, may proceed in the cause without waiving his objection. Such is the law without doubt, but it does not apply here for the reason that Woodward did not proceed in his action; to do so it would have been necessary for him to refuse to bid, and, if his contest were dismissed, to appeal to your office; whereas he adopted an entirely different method of settling the question, and paid over the sum named in order to acquire the preferred right. There was no mistake of fact in the payment, upon which he can rely; there was no compulsion in the payment, for he might have appealed; he voluntarily paid the money to the local officers with full knowledge of the facts. It is immaterial whether their demand and enforcement of it was illegal or not (and this point will not be discussed), for it is an established rule of law that when one voluntarily pays money on an illegal claim, with full knowledge of the facts, and without compulsion, he cannot recover it back.

Your decision is affirmed.

CHARLES M. PRICE.

The money paid for the privilege of making timber-culture entry, though paid under protest, was not a payment under compulsion and the protest did not save any right of repayment.

Secretary Teller to Commissioner McFarland, March 7, 1884.

SIR: I have considered the appeal of Charles M. Price from your decision of September 28, 1883, rejecting his claim for the repayment of $80, paid by him as a bonus for the privilege of making timber-culture entry for the SW. of Sec. 13, T. 113 N., R. 76 W., Huron, Dak.

It appears that Price and one D. L. Stick made simultaneous applications to enter this tract, and that the register under the rules prescribed in such cases put up at auction the privilege of making entry for said tract, for which Price bid and paid $80 and was accordingly permitted to make the desired entry.

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