he could not have had two contests pending at the same time between the same parties in the same tribunal for the same cause of action. It is obvious that the first contest must have failed because of its premature initiation, and the appellant, who acted through counsel, seems to have readily assented to the action of the office upon his attention being called to the error.

The second proposition, that the subsequent affidavit was supplemental to the first, is not tenable. It does not purport upon its face to be supplemental or additional, but is independent and complete in itself, as the basis of a new contest. The first contest having been dismissed and treated as abandoned by the appellant, there was nothing to support a supplemental affidavit.

There is, however, another question in this case not raised by the parties or referred to by you, but apparent on the face of the record, viz, whether the application of Smith, made September 12, 1882, was not also premature. Cross's entry was made March 11, 1882. That day would be excluded from the computation (Bennett v. Baxley, Secretary's decision of January 22, 1884), and six months would include the whole of the 11th day of September following (Tripp v. Stewart, Copp's P. L. L., 707).

Section 2297 of the Revised Statutes provides that if the homestead entryman shall, at any time before the expiration of the five years, "actually change his residence, or abandon the land for more than six months at any time, then and in that event the land so entered shall revert to the Government."

Forfeitures are not favored, and statutes declaring them should be liberally construed to avoid them.

The abandonment must be "for more than six months" in order to work the forfeiture and cause the reversion. To make a period of more than six months, it would be necessary to take some part of the 12th day of September, on which Smith made his application to contest; and since we cannot regard fractions of a day, the whole of said twelfth day must be included in order to make more than six months' abandonment. The forfeiture of Cross's entry was not therefore complete until the 13th, and the contest initiated by Smith before that time was pre

mature.

The question of construction in such cases has been a vexed one for many centuries. In Griffith v. Bogert (18 How., 158), after considering the rule at some length, the court said: "It would be tedious and unprofitable to attempt a review of the very numerous modern decisions, or to lay down any rules applicable to such cases. Every case must depend on its own circumstances. Where the construction of the language of a statute is doubtful, courts will always prefer that which will confirm rather than destroy any bona fide transaction or title."

In accordance with these views, Smith's contest should be dismissed, and Baxter's rejected application of October 3 should be allowed. I reverse your decision.

10. CONTRACT TO SELL.

VOID-STATUS OF CLAIMANT.

ALDRICH v. ANDERSON.

A contract for the future conveyance of part of a homestead claim is void, and will not affect the legal status of the claimant. Only an absolute conveyance will defeat his right.

Secretary Teller to Commissioner McFarland, December 29, 1883.

SIR: I have considered the case of Elisha B. Aldrich v. Joseph Anderson, on appeal by Aldrich from your decision of April 6, 1882, dismissing the contest. This case was initiated July 22, 1880, on allegations that Anderson was "holding the land for speculative purposes, and had already sold one-half thereof-having made a written contract therefor."

It appears that Anderson filed a soldier's declaratory statement September 15, 1876, for the SE. of Sec. 10, T. 8, R. 10 W., Bloomington, Nebr., and made homestead entry therefor March 7, 1877. On December 16, 1876 (as appears from the date thereof), he signed a written contract with one Carkins, whereby, for the consideration of $100, he agreed to make and execute to Carkins, on or before May 1, 1881 (at which date it was supposed Anderson would have acquired title to the tract), a warrantee deed for the S. of the tract. The testimony is conflicting as to whether this contract was actually made upon the day of its date, or subsequently to the date of Anderson's entry; nor is this material for the purposes of this decision, because the principle to be applied will embrace either date.

The question involved is as to the effect of this contract upon Anderson's entry; and the rulings of your office and of this Department have generally held that, if a contract of this character could be enforced against the homestead entryman, it was fatal to his claim; otherwise not. Further consideration of the question leads me to the conclusion that such a contract, if not absolutely forbidden by statute, is hostile to the whole spirit and purpose of the homestead law, and to the public policy relative thereto, and cannot be enforced. This view is held by the court in Dawson v. Merrille (2 Nebraska, 119), in which they say that if the provisions of the homestead law do not directly prohibit the making of such contracts, they do most clearly indicate a policy adverse to them, and hence that, being against public policy, a court will not lend its aid to enforce them. And in Oaks v. Heaton (44 Iowa, 116), where the question was like that in the present case, the court held that an occupier of land under the homestead law cannot make a valid contract to convey his homestead when he shall have acquired the legal title.

If such contract is not valid, it is void, and cannot be enforced

against the party making it; and being without legal significance, it is not the alienation which the law prohibits.

The rulings in Nebraska and Iowa accord with the well-settled doctrine that a contract inconsistent with public policy cannot be enforced. (Coppell v. Hall, 7 Wall., 542; Marshall v. R. R. Co., 16 How., 314; Scudder v. Andrews, 2 McLean, 464; Leavitt v. Palmer, 3 N. Y., 19.)

I am of the opinion that a contract made prior to the acquisition of title to convey land embraced in a homestead entry, after the entryman shall have acquired title, is, if not illegal, against the public policy, and cannot be enforced, and that an absolute conveyance only can defeat his right; and hence that Anderson's contract to convey to Carkins a portion of the land embraced in his entry was of no legal effect, and cannot change his status upon the record.

I affirm your decision.

11. CULTIVATION.

RESIDENCE-PURCHASE-R. S. 2301.

LORENZO A. PADDOCK.

Where a homestead claimant applies to purchase, under Sec. 2301 R. S., the land embraced in his entry, he must show cultivation of the land as well as residence thereon.

Commissioner McFarland to register and receiver, Fergus Falls, Minn., January 16, 1883.

GENTLEMEN: Lorenzo A. Paddock made homestead entry No. 7,299, February 15, 1882, for S. NE. and W. SE. 6, 136, 36. November 10, 1882, he applied to purchase the land as provided by section 2301 Rev. Stat. The proof submitted shows that he established a residence upon the land on February 17, 1882, built a frame house 12 by 16 feet thereon, and resided continuously in said house from date of establishing residence on the land to the time of making proof-a period of eight months and twenty-three days-and that he has cleared one acre of the land, but had "not had time to break and cultivate" any portion of the same.

The application to purchase was rejected by you on the day presented, for the reasons, as shown by your indorsement on the proof, "that the proof does not show cultivation," and thirty days were allowed for appeal.

On December 8, 1882—within the thirty days-the claimant, by his attorney, Fred. H. Lake, filed in your office his appeal, based on the ground that "he has built a house, cleared some of the land, and resided thereon for six months." This appeal, with the other papers relating to the case, was transmitted to this office for consideration with your letter of December 28, 1882.

Section 2301 Rev. Stat. permits purchase of the land as contemplated in this case upon presentation of proof of settlement and "cultivation" as provided by law.

The proof presented by the claimant does not only fail to show culti vation, but clearly establishes the fact that no portion of the land was cultivated by him. I am, therefore, of opinion that your decision rejecting his application to purchase was correct.

The appeal is, therefore, dismissed and your action sustained. Inform the party, through his attorney, respecting the action of this office in the premises, and advise him fully respecting his right to appeal to the honorable Secretary of the Interior within sixty days, as provided by the Rules of Practice.

CONTEST-GOOD FAITH NOT SHOWN.

JACKLIN v. SAMUELSON.

The testimony shows that defendant failed in cultivation of the land, and his residence thereon is too meager to indicate good faith. No satisfactory excuse is pleaded for failure to comply with the homestead law. Exceptions stated where claimants are not obliged to reside upon their homesteads.

Commissioner McFarland to register and receiver, Crookston, Minn., December 5, 1883.

GENTLEMEN: I have considered the case of Rudolph Jacklin v. John Samuelson, involving the latter's homestead entry No. 5,918, made Sep tember 27, 1881, for the S.SE. 31, and S. SW. 32, 155, 43, on appeal by the defendant from your decision adverse to him.

Contest was instituted July 22, and hearing held November 13, 1882, the charge being abandonment. Both parties appeared.

The testimony shows that the defendant went upon the land for the first time March 15, 1882, and remained four days at work in the erection of a house thereon in which he slept on the last night of his stay there, having slept the other three nights at a neighbor's, who furnished him his meals, which he ate on the land. He then absented himself from the land until April 25, 1882, when he returned to the land, and, after remaining thereon three days, again absented himself therefrom and did not return thereto until after the initiation of the contest.

The cause of his continual absence from the land the defendant attributes to the alleged fact that from date of entry, September 27, 1881, to July 27, 1882, excepting the few days he was on the land, as hereinbefore shown, he was employed at work in Crookston, Minn., part of the time chopping wood for his board and for fifty cents a day, and part of the time, namely, from April 27 to July 27, 1882, at work for the railroad company. He testifies that while working for the company his wages were $1.50 per day during the first month and $1.75 per day during the last two months.

This, the counsel for plaintiff makes the point, would indicate that the defendant was not so financially distressed as not to have been able to have the land improved during his absence, which the evidence fails to discover was attempted by him.

In this view I fully concur, the more especially as the defendant himself admits that when he went to Crookston, on March 19, 1882, to resume his work there, he was not "out of money." And although claiming in this connection that he had "nothing to live on," he does not make the plea of poverty as an excuse for his failure to meet the requirements of the law; nor could such plea avail him anything under the state of facts presented.

The real question at issue, and the one upon which it would seem the defendant mainly relies to sustain his entry is, does the fact of his being engaged at work which required his attendance at a place other than his homestead, excuse his failure to meet the requirements of the law in the matter both of residing upon and cultivating the lands?

Clearly not, for the homestead law insists on settlement or residence, and cultivation for a period of five years (John Wineland, 4 Copp, 103), and that the defendant was not ignorant of at least one of these requirements-that of inhabitancy-is manifest from his attempt to keep up a show of residence by going upon the land and remaining thereon four days at one time and three at another.

A homestead claimant who remains over night on the land once or twice in six months fails to establish the residence contemplated by law. (Byrne v. Catlin, 5 Copp, 146.) Furthermore, it must have been apparent to the defendant at date of entry that by reason of his occupation, as above, he was not in a position to comply with the plain provisions of the law, and, hence, that in making the entry he did so at his risk. The only cases in which a claimant is excused from residing upon his homestead are (1) where such residence having once been established is afterward rendered impracticable by reason of the claimant's appointment to a public office, requiring his residence at a distance from the land covered by his entry (Harris v. Radcliffe, 10 Copp, 209); and (2) where the claimant is the widow or heir of the deceased homestead settler (Official Circular issued October 1, 1880, p. 15), but in either case the land must be cultivated for the required period.

Such rule, therefore, would not apply to the case at bar, wherein it is clear from the evidence the defendant never established the residence contemplated by law; and as it is held (Byrne v. Catlin, supra) that where it is shown that such failure was not the result of ignorance or uncontrollable circumstances, the entry should be canceled, I must hold that the defendant has forfeited his entry.

As regards the further point raised by plaintiff's counsel, that the defendant attempted to dispose of the land for a valuable consideration, and with this purpose in view relinquished his entry on the back of his duplicate receipt, which, however, was never delivered, the same