bar a pre-emptor who moves from his own dwelling-house in a town or village upon a pre-emption claim.

Copp's L. L., p. 589.

§ 183. The rule requiring six months' residence should not in all cases be enforced, but two months' residence is not sufficient to entitle a claimant to make entry. A claimant can not set up his imprisonment as an excuse for failure to comply with the requirements of the law. Lawful imprisonment is not legal duress.

Copp's L. L., p. 594.

The pre-emptor's affidavit must be taken before one of the local officers.

Copp's L. L., p. 602.

Because a party failed to submit proof and make payment within the time prescribed, he should not be subjected to forfeiture, unless a valid adverse interest has attached.

Copp's L. L., p. 604.

The second section of the act of March 3, 1843, gives to the executor, administrator, or one of the heirs the absolute right to complete the necessary proceedings for acquisition of title, in case of a deceased pre-emption claimant.

Copp's L. L., p. 610.

Notice of hearing by mail is not sufficient. When personal notice is impossible or inexpedient for satisfactory reasons, the party should be notified by publication.

Copp's L. L., p. 612.

§ 184. A quitclaim deed does not estop the grantor from asserting his subsequently acquired title, but a settler who has conveyed the land by warranty deed can not make a valid preemption entry thereon.

Copp's L. L., p. 619.

§ 185. Transmutation.The right to transmute to a homestead belongs only to the party filing. A widow can not trans*mute her late husband's filing, nor make a homestead on the same tract, until it appears that the heirs do not intend to prove up. Copp's L. L., p. 626.

§ 186. School Section.-Where settlement and improvement by a pre-emptor are found to exist on a school section at the time of the survey, the right of the state to the land is gone, if the pre-emptor perfects his right, and in lieu of it the state has the right to select other land.

Sherman v. Buick, 93 U. S. 209.

And in a later case, Water and Mg. Co. v. Bugbey, 96 U. S. 165, it is decided that where a settler on these lands abandons his claim to the same, the title of the state becomes absolute, as of the date of the survey.

The right of the state to make selections of school lands only attaches when the final survey of the grant is made, and the commissioner of the general land office approves that survey.

The approval of the secretary of the interior should not be held to relate back to the date of the selection, to the prejudice of adverse claims.

Copp's L. L., p. 635.

§ 187. Pre-emptions, when and how Admitted.-Pre-emptions are admitted under sections 2257 to 2288 of the revised statutes of the United States, upon "offered" and "unoffered " lands, and upon any of the unsurveyed lands belonging to the United States, to which the Indian title is extinguished, although in the case of unsurveyed lands no definitive proceedings can be had as to the completion of the title until after the surveys shall have been extended and officially returned to the district land office.

The pre-emption privilege is restricted to heads of families, widows, or single persons over the age of twenty-one, who are citizens of the United States, or who have declared their intention to become citizens, as required by the naturalization laws. This does not include Indians, except such as have ceased their tribal relations, and been declared citizens by treaties or acts of congress.

The right of pre-emption, formerly extended by act of congress of March, 3 1853, for one quarter-section, or 160 acres, at the price of $2.50 per acre, to the alternate or reserved sections along the line of railroads, is continued by the revised statutes, sections 2257, 2259, and 2279.

§ 188. Section 2281 thereof protects the right of settlers on sections along the line of railroads where settlement existed, prior to withdrawal, and in such cases allows the land to be taken by. pre-emptors at $1.25 per acre, but requires that they shall file the proper notices of their claims and make proof and payment as in other cases.

Where the tract is offered" land, the party must file with the district land office, his declaratory statement as to the fact of his settlement within thirty days from the date of said settlement, and within one year from the date of settlement must appear before the register and receiver and make proof of his actual

residence on and cultivation of the tract, and secure the same by paying cash, or locating thereon military bounty land warrants or agricultural college scrip, according to law; or private claim scrip may now be used, under act of congress of January 28, 1879.

§ 189. Surveyed but not Offered.-Where the tract has been surveyed and not offered at public sale, the claimant must file his declaratory statement within three months from date of settlement, and make proof and payment within thirty months after the expiration of the three months allowed for filing his declaratory notice, or, in other words, within thirty-three months from the date of settlement.

Where settlements are made on unsurveyed lands, settlers are required, within three months after the date of the receipt at the district land office of the approved plat of the township embracing their claims, to file their declaratory statement with the register of the proper land office, and thereafter to make proof and payment for the tract within thirty months from the expiration of said three months.

The pre-emption filings provided for as above may be relinquished by the claimants in writing before the register or receiver of the proper district land office, or the relinquishment may be executed by the claimant on the back of the declaratory statement receipt, duly witnessed and acknowledged in the manner requisite under the laws of the state or territory in which the land is situated for the transfer of real estate. After relinquishment filed in the district land office, the tract embraced in the filing will be held subject to the claim of any other settler, according to the first section, act of May 14, 1880. If the receipt is lost, or from any other cause can not be produced, the relinquishment must be accompanied by the affidavit of the party showing the fact.

When two or more settlers on unsurveyed land are found upon survey to be residing upon or to have valuable improvements upon the same smallest legal subdivision, they may make joint entry of such tract, and separate entries of the residue of their claims. This joint entry may be made in pursuance of contract between the parties, or without it.

. R. S. 2274.

§ 190. Death of Settler.-Should the settler in either of the aforesaid cases die before establishing his claim within the period limited by law, the title may be perfected by the executor, administrator, or one of the heirs, by making the requisite

proof of settlement and paying for the land, the entry to be made in the name of "the heirs" of the deceased settler, and the patent will be issued accordingly. The legal representatives of the deceased pre-emptor are entitled to make the entry at any time within the period during which the pre-emptor would have been entitled to do so had he lived.

Section 2261 of the revised statutes prohibits the second filing of a declaratory statement by any pre-emptor qualified at the date of his first filing, where said filing has been in all respects legal. Where the first filing, however, is illegal from any cause, not the willful act of the party, he has the right to make a second and legal filing.

§ 191. Insane Persons.-Provision is made by the act of congress of June 8, 1880, whereby the rights of pre-emption claimants becoming insane may be proved up, and their claims perfected by any person duly authorized to act.for them during their disability.

1. Such claims must have been initiated in full compliance with law, by persons who were citizens or had declared their intention to become citizens, and were in other respects duly qualified.

2. The party for whose benefit the act shall be invoked must have become insane subsequent to the initiation of his claim, and the act will not be construed to cure a failure to comply with the law, when such failure occurred prior to such insanity.

3. Claimant must have complied with the law up to the time of becoming insane, and proof of compliance will be required to cover only the period prior to such insanity.

4. The final proof must be made by a party whose authority to act for the insane person during such disability shall be duly certified under seal of the proper probate court.

Before final proof is made on pre-emption claims and entries allowed, it is necessary that public notice be given under the act of congress of March 3, 1879, as pointed out with regard to homestead claims; and parties interested in the issue of preemption and other patents are further advised that, in a decision of the honorable assistant secretary of the interior, of July 27, 1880, in the case of Horace Whitaker ex rel. Nathan H. Garretson v. The Southern Pacific Railroad Company and Wesley M. Slater, the following instructions are promulgated for the government of this office:

Not Assignable.-" I think it is not a correct practice to issue a pre-emption patent to an assignee in any case. The law

as to the issuance of patents is well stated in the case of McGarrahan v. New Idria Co., 49 Cal. 335, thus: Neither the. president, however, nor any officer, has other power * * * to sign or to cause the seal of the land office to be affixed to patents than such as is conferred by statute of the United States.' See also Stoddard v. Chambers, 2 How. 318; McGarrahan v. Mining Co., supra; sections 450 and 453 of the revised statutes; and act of June 19, 1878 (20 Stat. 183). I find nothing in the pre-emption law requiring the issuance of patents to assignees of pre-emptors, and the labor of examining into assignments ought not to be assumed by your office, to say nothing of the evils that may result from issuing patents to assignees in pre-emption cases. The same doctrine applies to all cases of the issuance of patents except where the statutes expressly recognize the right of an assignee to take patent in his own name."

Circular of October 1, 1880.