Where homestead entry was made by a guardian for the benefit of the orphan child of a deceased soldier, patent must issue to the beneficiary, whether of age or not...... 114 Where alien donation claimant died after declaring his intentions and before natural- ization, patent properly issues to his heirs. 439 The right to patent (mineral) is not traced beyond the entryman (deceased), and issu- ing in his name inures to the benefit of him whose right may afterwards appear........ 772 Must issue to the entryman (pre-emptor) and not to his grantee.... INVALIDITY.
Where one attacks a patent (to pre-emp- tor and State) for fraud (because coal lands) with the purpose of entering the land on va cation thereof, he should make a full prima- facie showing at the hearing, if ordered, at his own expense; if the other party desires to rebut, he may do it at his own expense.. 761 The rule that the injured party on discov- ering the fraud must give prompt notice of his intention to rescind the deed (patent) is not applicable to the government, to which laches are not imputable..
Of land office fees, which is prerequisite to a preferred right of entry, will be pre- sumed (on appeal) where the contrary does not appear.......
Receiver's duplicate receipt is merely prima-facie proof of payment....
A check is not a legal payment of fees (timber-culture)..........
Certificates of deposit for the survey of a private land claim cannot be used in pay- ment of lands homesteaded or pre-empted.. 463 Military bounty land-warrants may not be received in payment of pre-emptions.... 673 For the purpose of making payment for pre-emption and commuted homestead en- tries, Supreme Court scrip is money........ 599 Public land sold is to be paid for in cash; checks, postal orders, and drafts are not re- ceivable in payment; foreign gold coins, as legally valued, and national bank notes are receivable; scrip of various kinds, as pro- vided by law, is receivable in lieu of cash.. 658 Deposits for the purchase of public lands should be made with the receiver, or the assistant treasurer with whom the receiver deposits, in the purchaser's name, to the credit of the treasurer of the United States, on account of sales of public lands". Where deceased entryman paid the com- mutation price of the land, and the receiver never accounted for it, the heirs must again pay said price.......
Money paid the receiver on declaratory statement for Osage Indian lands was a mere deposit; if proof had been accepted, it would have been received as a first payment on the land; as the filing was canceled, and the money has not been accounted for (or) cov- ered into the treasury, the case is between the depositor and the receiver....
Where money was left on deposit with a former receiver. on account of a mining
Is not the subject of sale and transfer.... 559 Is the right to hold land before payment is made therefor, upon promising to buy the land at a stipulated time, together with the right to purchase at such time; it is initi- ated by settlement and filing a declaratory statement, and has had its full life when the stipulated time of purchase arrives........ 855 Where B filed for A, without A's consent or ratification, the right was not exhausted.. 621 Where a pre-emptor voluntarily abandons his claim in the face of an adverse claim which he might have successfully contested, he exhausts his right..... FILING.
May be valid as to one part and invalid as to another part of the land covered by it; as where A surrendered possession of the W. } of a quarter, and B, who filed for the whole of it, took possession of the W. alone...... 637 If not made within the time limited (three months), is barred by an intervening home- stead entry, and right to land is forfeited... 578 A pre-emptor may file but one declaratory statement on the same or on another tract; applied to a case where second filing was offered because settler found it impossible to raise good crops on his claim....
Where the settler relinquishes the land in the face of a homestead claim, he cannot have his filing reinstated on ground that the contract consideration for relinquishment
Where one owned land (homestead, after final proof) in the same Territory and made a deed of it to another prior to settlement, but did not deliver the deed until after set- tlement, he was not a qualified pre-emptor.. 579 Settlement may not be made by one re- moving from land which he has bought and paid for, though no deed for it has passed.. 610 A married woman may not make an en- try; marriage (by consent and cohabitation) to one from whom she had been previously divorced (in Minnesota) is valid under the code of Dakota.................
Page. Application to transmute should be re- ceived, and notice thereof be given to a sub- sequent entryman; if the validity of the pre-emption claim is not impeached, the subsequent entry should be canceled and the transmutation allowed
Where A makes a pre-emption filing, and afterwards B makes a claim (homestead) sub- ject to it, if A makes application to trans- mute and B denies his right to do so, the burden and expense of disproving his right is on B
For general rulings, see Final Proof. CERTIFICATE.
A pre-emptor, who has complied with the prerequisites of the statute, is entitled to a certificate of entry.....
Is only prima facie evidence of payment. 48 PRICE.
See Payment, Repayment, and Public Land.
There is no presumption of death until seven years after the homestead entryman's disappearance..
Of bad faith is raised by an attempted sale of a homestead..
Of fraudulent inception of an entry (tim- ber-culture) arises from its relinquishment for value in about a month......
Of forgery may not arise from a mere com- parison of signatures, without allegation or other proof...
Allegation under oath, corroborated, that claimant was informed by local officers that he could not make a certain entry, if uncon- troverted, presumed to be true.......37, 246, 247 The payment of fees, which is prerequisite to a right (preferred right of entry) will be presumed (on appeal) where the contrary does not appear.
Where a pre-emptor was required to make payment by a certain date, and the record does not show the payment, it is presumed (his whereabouts being unknown) that he failed to make it
In the absence of allegation or showing to the contrary, it is presumed that the officers (intrusted with the control of a survey) have properly discharged their duty
Where mineral entry had lain dormant for seven years, uncanceled, all the antecedent basic proof was presumably regular and sufficient...
Joint action by the local officers upon these claims is required by the law........ 340 Proof of occupancy must be by the facts showing it, and not by the conclusions of witnesses
Where proof of occupancy is not sufficiently definite, witnesses must be summoned and examined; instructions given
A pre-emption claim may not be filed until the occupant claim is adjudicated.... COLORADO.
The utility and propriety of allowing en- tries (pre-emption) on lands (Vigil and St. Vrain derivative claim) relinquished by the claimants is doubted; special considerations in this case which forbid it..
The land in question (Vigil and St. Vrain derivative claim) is not open to entry or fil- ing, because action on the appeal from the rejection of the claim by the local office was suspended by the President on the ground that it was final, which decision was over- ruled by the circuit court, and the case is now depending in the Supreme Court and not finally determined
Motion to substitute another for the ap- pellant in the rejected derivative claim (Vigil and St. Vrain), on the ground of judgment and sale under execution in his favor, denied on the ground that the Land Department has no longer jurisdiction, un- der the President's order, and for other reasons mentioned
Since the President's order affirmed the finality of the decision of the local office in the claim of Thomas Leitensdorfer, and pat- ent has issued for it, the tracts outside of the limits of the lands allowed by the local office are subject to the settlement claims (pre-emption) CALIFORNIA.
A pending application under Sec. 7, Act of July 23, 1866, does not except the land from the operation of a railroad grant and with- drawal thereunder (on preliminary line) ... 548 LOUISIANA.
Where sale was ordered without proof as to heirs, former proceeding, or the want of them, application by the purchaser for sat isfaction by issue of certificates of location
is denied, on the ground that the proceed- ings were insufficient to warrant the sale or effect a transfer of title....
The claim (McDonough) was one of those reported by the local officers on November 20, 1816, in the first class, which were recog nized by the act of Congress, and declared to be founded on complete titles; such rec- ognition did not however fix its depth or ex- tent, and the duty of survey and segregation followed; as to claims in the second class, where the equity was in the occupants and the fee in the United States, the act annexed the fee to the equity NEW MEXICO.
Appeal to the Land Department does not lie from the report of the surveyor-general to Congress
Examinations by the surveyor-general are ex parte, and notice to outside parties is not required....
The surveyor-general reports upon the validity (i. e., the regularity and genuineness) of the claim, and it is not his duty to hear and determine controversies between con- flicting grants... CONFIRMATION.
The right to the pueblo title and posses- sion rests in the city of San Francisco by judi- cial confirmation, sanctioned and ratified by legislative grant.
Jurisdiction will be presumed where the records of the court do not affirmatively show a want of it
the facts in this case considered, and amend- ment of survey directed......
Where the applicants for survey (Louisi ana) are meagerly described, but have been recognized and survey ordered, on objection amendment will be allowed....
Location by survey (New Mexico) may not be properly made until after confirmation; a preliminary survey, prior thereto, is not authoritative or final
Questions relating to survey (New Mex- ico) are within the Commissioner's jurisdic- tion, and properly come before the Secre- tary only on appeal...
As the claim (New Mexico) was confirmed as "in the vicinity and beyond the limits" of a pueblo, the survey must be amended SO as not to conflict with the patented pueblo.... Payment of the costs of survey and plat- ting is required in all cases subsequent to act of July 31, 1876.
In the absence of allegation or evidence of fraud, the Land Department will not con- sider the question of necessity or cost of a completed survey
Certificates issued for deposits cannot be used in payment for lands entered under the pre-emption or homestead laws......... BOUNDARY.
The words in the decree of confirmation (pueblo lands of San José) "including part of the oak grove now or formerly at this place," and including all of the willow grove now or formerly at the source of said river," were not explanatory of other words of boundary, but were descriptive of the act- ual boundary lines.... ... 358
Permanent monuments and natural ob- jects named as boundaries control courses, distances, and quantity ....
Confirmation "to the extent of one-half of a square league of land, a little more or less bounded and described as follows:" the boundaries designated will control the loca- tion (California). ..... 366
It is presumable that the granting author- ity acted intelligently, and did not so act as to defeat an earlier by a later grant (New Mexico)
Where a river and a point of table land are named as the western boundary of a grant (New Mexico), the point of table land forming the southwest corner, and the river, after a northeast and northwest course,
runs easterly three and a half miles, and then turns northeasterly to a point due north of said point of table land, the line should be run north from the point of table land to the said turn in the river, especially where a conflict with an unconfirmed senior grant is thus avoided
Where the lines of location necessarily conflict with prior grants (New Mexico), it is not the province of the Land Department to determine questions of title; the granted and confirmed boundaries must be followed, leaving such interferences to be adjusted by the parties or by the courts ......
Where right to the patent (Louisiana) is in controversy the local officers will decide the question, with usual time for appeal; if none is filed, they will deliver it in accord- ance with their decision; if appeal is filed, the case must be sent to the Commissioner and the patent held until final action....388, 389 Persons claiming delivery of patents (Lou- isiana) must furnish an unbroken chain of title, showing to whom the lands inure; if agents or representatives, they must connect themselves with the patentees
Patents (Louisiana) should be delivered, with preference, in the order named, to (1) the person to whom issued, (2) the claimant under the grantee, with unbroken chain of title, (3) one presenting a duly executed power of attorney from the person entitled as above......
INDEMNITY SCRIP.
The purchaser of a confirmed claim (Lou- isiana) becomes, ipso facto, the legal repre-
Where there is a discrepancy in the spell- ing of names, affidavit as to the true orthog- raphy and identity of persons is required.430, 431 The claims of Toups and St. Amand were merged in Lanfear by act of Congress; the patent thereupon issued, upon approved sur- vey, comprehended a location and satisfac- tion of the Toups claim in its entirety; the case is res judicata, and the parties are estopped by conduct and by the record from receiving scrip under the general act....... 431 The relinquishment or yielding of a su perior title in favor of subsequent and con flicting confirmations and locations, where the parties in interest can obtain compensa- tion in scrip, is illegal.....
Private Entry.
Origin of Sec. 2272, R. S., authorizing pri- vate entry by a pre-emptor after expiration of the right of pre-emption.
Public Land.
FRACTIONAL SECTION.
A quarter section is, under the homestead laws, 160 acres, and in fractional sections an entry must approximate 160 acres as nearly as practicable......
When the excess above 160 acres is less than the deficiency would be if the subdi- vision were excluded, it may be included in a homestead entry; where it is greater it must be excluded.... ୫୫
Where the excess payment in homestead entry would be less than one dollar, none is required......................
Timber-culture entry for S. of NE. and two lots (91.14 and 91.21 acres) must be can- celed as to either the S., or one forty and one lot, or one of the lots; any excess to be paid for in cash
Timber-culture entry, to extent of 160 acres, may be made in a section containing
A lot made by uniting a small and pre- sumably unsalable tract to an adjoining subdivision, in another quarter-section, is a legal subdivision of the public land......... 460 SURVEY.
One system of surveys closed upon an- other (California), and the last range of townships was found to be about half the regular width; as they could not be
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