A homestead entry in another's interest, and not for a home for the entryman, is in fraud of the law and invalid ab initio....... 95 An agreement to convey part of a home- stead after final entry violates Sec. 2290, R.S. 55 An attempted sale of a homestead will not warrant cancellation of the entry, but it raises a presumption of bad faith.......143, 233 A written agreement to execute, after ac- quiring title, a warranty deed to part of a homestead does not affect the entryman's status, as it is illegal, because prohibited by law or by public policy, and cannot be en- forced; only an absolute conveyance, which can be enforced, defeats his right.....
The Land Department will take summary action when the record shows a fraudulent entry, notwithstanding contest allegation was abandonment and was not proved.....95, 97 Presumption of forgery may not arise from
a suspicion founded on a comparison of signa- tures, without allegation or other proof..... 240 TIMBER CUlture.
An entry that has been made in the inter- est of another is fraudulent ..........
A claim under the Acts of 1874 and 1878 is solely for the cultivation of timber; if the land is used as capital, or for speculative or other purposes inconsistent with the object of the acts, it is held in violation of law and is subject to forfeiture
For rulings relating to, see under Patent. INNOCENT PURCHASER.
Entry may be made by purchaser in good faith of the mineral location (placer) made by a register
A purchase prior to patent of land covered by a desert-land entry does not make the buyer an "innocent purchaser
Assignee of a certificate of soldier's addi- tional homestead right takes it subject to all defects; is not an innocent purchaser..... 235 Where the land was not subject to pre- emption (town site) the entryman acquired no interest in it by his entry, and therefore could convey none; his grantee prior to patent was not a bona-fide purchaser....782, 795 A grantor can convey no more than he possesses, and those who come in under a void grant acquire nothing.....
One who acquired title by fraud may make a valid conveyance to a bona-fide purchaser, but one who never acquired the title cannot convey it..
The doctrine of "bona-fide purchaser" does not apply to purchase of a pre-emptor
The clause in Sec. 2262, R. S., concerning bona-fide purchasers refers to sales before, and not after, entry; it has respect to the effect of the conveyance as between grantor and grantee, and not as between either party and the government; it is to be en- forced in the courts, and not in the Land De- partment...... ...779, 781, 783
The purchaser of a void title cannot set up the rule of equitable estoppel, that loss should fall on that one of two innocent per- sons whose conduct rendered the injury possible....
See Railroad, State, and Swamp Grant. For French, Spanish, and Mexican, sce Private Claims.
In relation to, see under Contest.
Homestead.
SETTLEMENT.
Effect of; see Settlement.
APPLICATION.
For rulings, see Application.
In relation to, see Affidavit. ENTRY.
Effect, change, cancellation; see Entry. Invalidity; see Illegality and Fraud. Amendment of; see Amendment. See Relinquishment and Reinstatement.
By the wife of an insane person, as head of a family, her husband being civilly dead.... 102 Not by a married women... 112
Where husband and wife settled on and improved a tract, and afterwards the wife made entry of it, under a mistake as to the law, said entry is canceled, with privilege to the husband, if qualified, to enter in his own name, and to have his right relate back to date of settlement..
By a widow, in her own right, whilst con- tinuing to cultivate the homestead of her deceased husband...
By a minor, as head of a family
family of a settler, who had become insane after settlement without applying for it.... 102 Not by one who relinquished a homestead because of the ravages of grasshoppers..... 141 By one who went upon the land as the tenant of another, where there is no fraud, and where the latter has made no claim to it and has absented himself......................................... 135 By one who had filed on the land; such an entry operates as a waiver and withdrawal of the preemption claim........
As to entry by officers and employés, see under Land Department.
Concerning citizenship, see Alien.
BY DESERTED WIFE.
A deserted wife or child may not make final homestead proof, or commute, or pur- chase under act June 15, 1880, or obtain pat- ent, in her or his own right, by virtue of the husband's or father's entry.....
Rules to be observed in cases of desertion: 1. If wife maintains her residence, no one but her shall be heard to allege deser- tion, in proof of change of residence or abandonment, for seven years after entry.
2. If she, within said seven years, proves desertion, she may enter the land in her own name, if the head of a family, or if she has the right to acquire real property as a feme sole.
3. If she does not make such entry she may make final proof in his name, as his agent, with her own affidavit to non-alien- ation; the entry to be submitted to the Board of Equitable Adjudication.
4. She may, as his agent, commute the en- try or purchase under Sec. 2, Act of June 15, 1880, and new entry shall be referred to Board of Equitable Adjudication.
The oath of an agent (to non-interest and non-agreement for sale) required by circular December 15, 1882, must accompany filing.. 214 ADDITIONAL.
Any certificate of right issued by the Gen- eral Land Office may be located by agent... 240 May not be made on a tract withdrawn, for purpose of a sale, under Sec. 2455, R. S.. 242 The practice in reference to assignments reviewed; the right is personal, and the as- signment of a certificate will not be recog nized; a purchaser takes it subject to all defects, and is not an innocent purchaser... 235 Where certificate has issued improperly to one (in Missouri Home Guards) without right of additional entry, it is void, and the entry made under it must be canceled...... 235 The purchaser of the certificate, having made entry, may (in this case) buy the land under Sec. 2, Act of June 15, 1880........
The inadvertent use of the same original entry in a certificate subsequently issued does not invalidate a location upon the prior and prima-facie valid certificate.....
Mere suspicion of forgery, from a com- parison of signatures on army pay-rolls, without allegations or other proof, may not impair the claimant's right......
In case of widow's marriage or death, her attorney does not thereby become the chil-
dren's attorney, especially where their guard- ian has appointed another.......
Where a widow applies and dies before is- sue of the certificate, leaving children of the soldier, her right is extinguished, notwith- standing any power of attorney she may have given, coupled with an interest or oth- erwise
Where a power of attorney, coupled with an interest, was executed by the soldier and by his wife, and delivered to A as attorney, and the soldier died before certification of his right; on a new application by the widow, with power of attorney to B as her attorney, it is held, that A is entitled to possession of the certificate.
Where the soldier gave A a power of at- torney in 1875, and B a power of attorney in 1881, wherein all former powers were re- voked, and C, claiming to represent A, dele- gated his power to D: held, that A might delegate his power to D directly, but not in- directly through C; that, unless C can es- tablish a privity with A the evidence filed by D cannot be utilized by B, but must be returned to D, as requested, without preju. dice to the soldier; and that B cannot be recognized as against A until he files the evidence requisite to establish the claim..
Where A, as attorney for the soldier, filed a claim in 1878, which was afterwards re- jected on A's request, and the soldier so no- tified by him; and B, as attorney, filed a new claim in 1879, and was duly recognized as the attorney; and A afterwards refiled the rejected claim, with a power of attorney executed in 1878; and B filed a power of at- torney, executed in 1880 and revoking former powers: held, that A's action in procuring the rejection of the claim and notifying his principal thereof operated as a revocation of his power of attorney
The soldier's children take, not as heirs, but as donees, and are substituted to the sol- dier's rights where there is no widow, or in the event of her marriage or death......... 242 A minor orphan daughter, surviving, suc- ceeds to her father's entry, and may also make homestead entry in her own right.... 99 A minor orphan child surviving, and com- ing of age before time for making final proof, will not be required to establish residence, but must improve and cultivate the land. 101, 244 Application for minor orphan children must be made on the ordinary forms, name
The act of January 18, 1881, for the relief of the Winnebago Indians, extended the time within which homesteads, taken under the act of March 3, 1875, could be entered and completed, for a period long enough at least to enable the claimants to use to advantage the money appropriated in making entries, erecting dwellings, and cultivating and im- proving the lands so entered and selected; such selections and entries (in Wisconsin) are not at present subject to contest ....... 191 ADJOINING FARM.
Entry cannot be made by one owning and residing on 160 acres who has given a bond for a deed of the half of it, conditioned upon payment for the land in three years Residence thereon is not required..... COMMUTATION.
The entryman, applying to purchase un- der Sec. 2301, R. S., must show that he has in good faith cultivated the land
A probate judge in Dakota, acting as clerk, may take the commutation affidavit, pro- vided that it be taken at the county seat where the probate court is holden.......... 224 A deserted wife or minor child may com- mute only as an agent; entry to be referred to Board of Equitable Adjudication PURCHASE (act of June 15, 1880).
An executed or present transfer, and not an agreement to transfer in futuro (after en- try), is meant by the act
A contract to convey the land does not deprive entryman of benefit of the act.....
Irregularity or illegality of entry-fraud not appearing-is not a bar to the right.... 94 An attempted transfer subsequent to June 15, 1880, cannot become effective, the act having relation to past transactions only.... 177 There is no right of purchase in one to whom the lands have already been patented under the general homestead law, notwith- standing there may be doubt about the va lidity of the title to them
The entryman has right of purchase while his appeal from the Commissioner's action is pending before the Secretary, prior to the cancellation of his entry
When judgment against the entryman has become final under the rules, in the local office or on appeal, the contestant's preferred right of entry attaches, and if duly exer- cised bars the entryman's right of purchase on a subsequent application
The deserted wife or minor child of the entryman may purchase, as his agent; entry must be referred to Board of Equitable Ad- judication....
As the entryman in this case, if living, might have purchased at date of the appli- cation (after contest, but before hearing), this right descended to his heirs.........99, 523 A devisee has the right of purchase, as the transferee by will; applied to case where entryman's widow had deserted him several years before his death, and he had devised land to his daughter, who afterwards resided on and improved it as head of a family..... 82 Where one made homestead entry under the general law in 1874, and, in good faith, a soldier's homestead entry in 1878, and pend- ing contest against the latter, made applica- tion to purchase; held that, notwithstanding the irregularity, he may make purchase.... 124 Where the entryman sold his homestead right, and delivered possession of the land, which was occupied and improved by the transferee, his right of purchase is defeated. 125 The entryman can purchase only such part of the homestead as he has not attempted to transfer; if he has attempted to transfer, only the transferee has the right of purchas- ing, in whole or in part, unless there be a mutual agreement to the contrary....
The required affidavit of an applicant to purchase may be made elsewhere than in the land district, for good cause shown, be- fore any qualified officer having a seal
The proviso in this section was not neces sary to protect subsequent entrymen, the intention of Congress, from general consid erations, being sufficiently clear without it. 163 INSANITY.
For rulings relating to, see Insanity, DEATH.
Of soldier claimant; see Soldier, supra If entryman entitled to patent at death, his right inures to his heirs (or widow) .... Widow or heir is not required to reside on the land..
Upon death, the law casts the homestead right on the widow, who must, however, so in- dicate her intention of claiming the land that third persons shall not be prejudiced by her laches......
Page. Heirs may acquire title in either of the sev eral ways prescribed in the homestead laws, or may purchase under Sec. 2, Act of June 15, 1880, though aliens.......
The devisee of a single man, who made formal application before his death, has the right of entry.
Authorized sale under Sec. 2292, R. S., vests full title in purchaser, who, in order to obtain patent, must pay office fees only 76 On death of applicant prior to allowance of entry, his heirs may make the entry..... 77 Insanity of husband (the entryman) is to be regarded as "civil death".
As to final proof in case of death, see Final Proof.
See Abandonment and Residence.
The law insists on the cultivation for five years, even during periods when his absence is excusable; an entryman earning $1.50 to $1.75 per day at his trade has no excuse for failure to cultivate...
Homesteads; see under Homestead. Reservations; see under Reservation. Hostilities; see Duress.
Indian Lands.
KANSAS TRUST AND DIM. RESERVE. Sec. 4, act March 16, 1880, allowing entry without actual residence on the land, refers only to tracts on the boundaries of the Kan- sas Indian lands, contiguous to other lands (not Kansas Indian lands) on which the en- tryman was actually residing, and to which he held the legal title at date of the passage of the act..
Second entries are not permissible beyond the limit of 160 acres...
The "actual settlers " contemplated by the law are those who have made bona-fide resi- dence on and improvement of the land, ex- cept, under the act of March 16, 1880, land contiguous to claims on which they have made their homes
For general rulings concerning settlement, see Settlement.
OSAGE TRUST AND DIM. RESERVE. Claimants in default with settlement and im- provement might have purchased the tracts within the sixty days limited in Sec. 1, act of May 28, 1880....
OTTAWA AND CHIPPEWA (MICH.).
Lands valuable mainly for pine timber are not subject to Valentine scrip location, but can be disposed of only, at public offering, at the minimum price of $2.50 per acre..... 190
Under act June 8, 1880, the duly appointed guardian of an insane homestead settler can, after five years from date of the entry, make final proof...
If the insane person becomes sane before the expiration of the five years, he must re- sume residence and cultivation
It is advisable for a guardian or trustee to file his address in the local office, with proof of his authority to act, in order that he may be notified of any attack on the entry
To be within the provisions of act June 8, 1880, the claim must have been of record prior to the declaration of insanity.....
The wife of an insane person, who had settled on and improved a tract, but who had not filed a claim for it, may make entry in her own name, as head of a family, her hus band being regarded as civilly dead........ 102
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