d. PROOF AND PAYMENT. Within the time specified on page 66, proof of compliance with the law and payment of the money due, or its equivalents in warrant or scrip, must be made. Published notice must be given and proof thereof presented as set forth in homestead cases. The affidavit required may be made now before the clerk of the county court, while the evidence of witnesses may be taken before any officer authorized to administer oaths(*). Any person swearing falsely forfeits all right to the land and to the purchase money, and is liable to prosecution under the criminal laws of the United States. AFFIDAVIT REQUIRED OF PRE-EMPTION CLAIMANT. I, , States, to the solemnly claiming the right of pre-emption, under section 2259 of the Revised Statutes of the United of section No. of township No. —, of range No., subject to sale at do that I have never had the benefit of any right of pre-emption under said section; that I am not the owner of three hundred and twenty acres of land in any Staie or Territory of the United States, nor have I settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to my own exclusive use or benefit; and that I have not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whomsoever, by which the title which I may acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except myself. of the land office at do hereby certify that the above affidavit was subscribed and day of A. D., 18-. I, sworn to before me this Where a pre-emptor swears falsely, and his entry is canceled because of fraud, the Supreme Court Scrip used in payment of his claim is forfeited like a money payment, and can not be returned even to innocent vendees of the claimant(). Payment for public lands is required by law to be made to the Receiver. He is the only officer authorized to receive such moneys. Registers are not so authorized, and parties entrusting their money to a Register do so at their own risk. The official bondsmen of Registers cannot be held liable for a breach of private trust by their principals(°). A hearing may be ordered after final proof has been made in a pre-emption case to ascertain fraud reported by a special agent(). A proclamation is held to be sufficient notice to a pre-emption claimant, to perfect any preferred right that he might have on lands which are offered for sale by such proclamation; and where a public notice was duly published at the place whereat interested parties were bound to seek information regarding the public lands, a failure to learn of it is their neglect only. A notice to pre-emption claimants to prove up their claims before date of public sale is ex gratia, and the absence of such notice would not invalidate the sale(*). Where a county embraces land in two districts, a claimant who applies for land in one district may, under the Act of March 3, 1877, make the required proof, etc., before the clerk at the county seat, though such county seat is located in the other land district(). A pre-emptor, when his land lies in two districts, should file a declaratory statement in each land office, and pay for the portion separately in each district. The regular fees should be paid in each office, and a certificate and receipt should issue from each office(8). Joint entry by pre-emptors and homestead claimants may be allowed(1). Where a boundary line is recognized between two pre-emptors, A and B, who settled before survey on the same legal subdivision, and A sold to C after survey-on a proper showing, a joint entry by B and C will be allowed (1). A pre-emptor who settled prior to the homestead entry of another party cannot cite such entryman to a hearing until date of offering his final proof(3). A party who has resided on a tract five years may transmute his pre-emption filing to a homestead entry, and give notice of intention to prove up on the same day. (1) F. C. Saunders, Land Owner, Vol. 10, p. 169. (a) Act of June 9, 1880. Land Owner, Vol. 7, p. 58. (b) R. F. Pettigrew, Land Owner, Vol. 10, p. 179. (0) John Dotta, Land Owner, Vol. 10, p. 86. (d) Thomas Wrigglesworth, Land Owner, Vol. 11, p. (1) Vennegerholtz vs. McKennon, Land Owner, Vol. (e) Durisoe vs. Cessna, Land Owner, Vol. 11, p. 104. () Desarchy vs. Juarez,Land Owner, Vol. 10, p. 91. A party who has resided on a tract for five years without any filing may enter and give notice of intention to prove up on the same day("). A quit-claim deed executed by an occupant of public land will not operate to estop the grantor from asserting his own subsequently acquired title. A settler who has conveyed by warranty deed the land claimed by him cannot take oath prescribed by Sec. 2262 Rev. Stats., and cannot, therefore, make a valid pre-emption entry. The settler may render himself qualified to take the prescribed oath by showing a rescission or annulling of the contract, by which the title the pre-emptor might acquire from the Government would inure to the benefit of another("). Ques. 2. Are you the head of a family (if so, of whom does it consist), or a single person? Ques. 3. Are you a native-born or naturalized citizen of the United States ?* Ques. 4 Is your pre-emption claim, above described, within the limits of an incorporated town, or selected site of the city or town, or used in any way for trade and business? 2. Did you leave other land of your own to settle on your present claim? 3d. Have you ever made a pre-emption filing or entry for land other than that "ou now seek to enter? If so, describe the same. (Answer to the point and in detail.) ; 2d, Ans. Ist.. : 3d, Ques. 5. When did you first make settlement on the above-described land? 2d. What was your first act of settlement? 3d. Were there any improvements on the land when you settled? If so, state who then owned them and whether you purchased the same. 4th. What improvements have you made on the land since settlement, and what is the value of same? Ans. Ist,' ; 2d, ; 4th, Ques. 6. When did you first establish an actual residence on the land you now seek to enter? 2d. Has your residence thereon since been continuous: 3d. What use have you made of the land? 4th. How much of the land, if any, have you broken and cultivated since settlement, and what kind and quality of crops have you raised? ; 2d, Ans. Ist, ; 3d, —; 4th, Ques. 7. Are either of the parties who have testified as your witnesses in this case related to you by blood or marriage? If so, state how related. Ans. I hereby certify that each question and answer in the foregoing testimony was read to claimant before being subscribed, and was sworn to before me this day of, 188—. PRE-EMPTION PROOF.-TESTIMONY OF WITNESS. (The testimony of two witnesses, in this form, taken separately, required in each case.) testifies as follows: Ques. 3. Is claimant married or single? 2d. Of whom does tive or naturalized citizen? Ans. 1st, -; 2d, -; 3d, Ques. 4. Are you familiar with the character of the land? 2d. Are there any indications of coal, minerals, or salines thereon? (If so state plainly the nature.) 3d. Is it more valuable for agricultural than mining purposes? 4th. Do you reside in its vicinity? 5th. Is it within the limits of an incorporated town, or selected town-site, or used, in any way, for purposes of trade or business? (Answer to the point and in detail.) Ans. 1st, ; 2d, ; 3d, ; 4th, ; 5th, Ques. 5. Is claimant the owner of 320 acres in this or any other State or Territory? 2d. Did — leave or abandon a residence on own land in this to reside on the land herein described? 3d. Has ever filed for or entered other land under the pre-emption law? 4th. Has mortgaged or agreed to sell the the land herein described? -; 2d, ; 3d, ; 4th, Ans. 1st, Ques. 6. When did claimant first settle on claim? 2d. What was first act of settlement? 3d. What improvements has on the land? 4th. What is the value of such improvements? 5th. When did commence residence thereon? 6th. Has -residence been continuous? 7th. What use has made of the land? 8th. How much land has broken and cultivated? (Answer to the point and in detail.) Ans. 1st, ; 2d, In case the party is of foreign birth, a copy of his declaration of intention to become a citizen, or full naturalization certificate, officially certified, must be filed with the case. Ques. 7. Are you in any way interested in this claim, or, by blood or marriage, related to claimant? Ans. I HEREBY CERTIFY that witness is a person of respectability; that each question and answer in the foregoing testimony was read to name thereto; and that the same was subscribed and sworn to before me this before -day of signed NOTE.-The officer before whom the testimony is taken should call the attention of the witness to the follow ing section of the Revised Statutes, and state to him that it is the purpose of the Government, if it be ascertained that he testifies falsely, to prosecute him to the full extent of the law. TITLE LXX.-CRIMES.-CH. 4. SEC. 5392. Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years, and shall, moreover, thereafter, be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed. [See 2 1750.] The Register and Receiver will thereupon issue the final papers, giving the claimant a duplicate of the Receiver's receipt for the money paid. The patent will be issued in due course and sent to the local land office for delivery, unless otherwise directed by the claimant, as described in Chapter I. 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, that is, a forty-acre tract or a lot, they may make joint entry of such tract, and separate entries of the balance of their claims. This joint entry may be made in pursuance of contract between the parties, or without it. At any time after three months after the township plat is filed in the local office, a party who wishes a speedy adjustment of his claim may bring contest against adverse claimants by filing his affidavit and making provision for the expenses of the contest before the Register and Receiver. The hearing may be adjourned for distance or other good cause, and the testimony may be taken on a commission issued to any officer authorized to administer oaths. When the joint entry is made in pursuance of contract, the contract should be made first, and the filing and entry thereafter be made in pursuance thereof, by one party for all concerned. This contract must be in writing signed by all parties thereto, attested by two disinterested witnesses, and acknowledged before some officer authorized to take acknowledgments of deeds within and for the State where the land is situated. The character and authority of the officer must be verified by the seal of a court of record. Proof of occupation by settlement, residence and improvement by each and every party to the contract, must be made. The entry of an inconsiderable excess over one hundred and sixty acres will be permitted when the tract is bounded by regular quarter-section lines of survey. The pre-emption affidavit will be modified by inserting after the word "whomsoever," the words, "save under Section 2274 of the Revised Statutes of the United States, and as specified in the contract herewith submitted in pursuance thereof." No one who settled after survey was made can be a party to a joint entry, though where a party succeeds by purchase to the rights of one of two settlers before survey where there is a recognized division of land, such tract may be entered by the two settlers jointly(a). The established rule for awarding entries where two or more bona fide pre-emption claimants are found by the Government survey with conflicting or over-lapping claims, is: 1. Joint entries for the adjustment of coterminuous boundaries, 2. Entries by legal subdivisions to include principal improvements. 3. Entry by the prior settler. Such entries to be allowed as equity and justice may require("). Should the settler 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 (a) Vennigerholtz vs. McKennon, Land Owner, Vol. 6, p. 154. (b) Powell vs. Beatty. Land Owner, Vol. 2, p. 115. 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. The executor, administrator, or one of the heirs, has the absolute right to complete the necessary proceedings for acquisition of title in case of a deceased pre-emption claimant(*). The Land Department does not inquire if there are any heirs; but if there are any, it casts the title distributively upon each by including him in the general provision(). RULINGS. Where, from the nature of the land entered under the pre-emption law, it would appear that` the claimant has selected it for speculative purposes rather than for purposes of improvement and cultivation, the evidence of good faith and occupation should be of the most satisfactory character(). An unlawful occupant cannot prevent the legal settlement of a qualified pre-emptor on public lands. A pre-emptor may pay for part of his claim and abandon the balance(d). The possibility of one party taking the improvements of another is recognized as within the contemplation of the pre-emption enactments(). Parties who apply to make entry of lands under the provisions of the pre-emption laws, should be required to show by affidavit or otherwise that they have not made a previous filing(). The even sections along the route of the railroad granted by act of July 1, 1862, and the acts amendatory thereof, must be sold for not less than $2.50 per acre (8). A pre-emptor who settled prior to withdrawal for railroads, may enter his land at the minimum price at any time prior to the initiation of an adverse right by another settler(1). Where a pre-emptor makes final proof and payment and certificate for patent issued, such certificate may be assigned to a bona fide purchaser for value, who will be protected in his purchase. The good faith of the purchaser must be established by the facts in the case beyond question; but when so established, his rights cannot be invalidated by showing that his grantor failed to comply with the law(1). A party who purchases land without examination or inquiry, cannot be considered an innocent purchaser, especially when he fails to offer testimony showing his own good faith and that of his grantors, at an investigation ordered for that purpose(). Irregularities in the pre-emption proceedings may be overbalanced in view of ignorance and good faith, but a certificate issued to a pre-emptor on a sworn statement of alleged facts which never existed, is void(ib). Where a party settles as a pre-emptor upon land subject to such settlement, and in due time offers to make proof and payment at the proper land office, his right will not be prejudiced by the wrongful refusal of the local officer to receive such proof and payment, and he will not be obliged to remain thereafter upon the land he claims(*). A party who went upon land reserved under a railroad grant, with assurance from the company that he could purchase it of them, was not wrongfully upon the land, when the Department decided that it was not included within the reservation to the company, and had ordered the same restored to settlement. Where a pre-emptor is living upon and cultivating such tract of land, no specific act is necessary to constitute a new settlement after the restoration thereof to market(1). No general or inflexible rule can be laid down in cases where parties who are residing upon land at date of cancellation of homestead entries, seek to enter the tracts embraced therein. It is simply a question of good faith, and each case must be considered upon its own merits(m). (b) Ibid. (a) John Redington, Land Owner, Vol. 2, p. 19. (e) Copley vs. Reil, Land Owner, Vol. 5, p. 166. (a) D. A. Malone, Copp's Public Land Laws, p. 311. () Marks vs. Bray, Land Owner, Vol. 8, p. 139. Gladfelter vs. Wren, Land Owner, Vol. 4, p. 42. (8) Patrick Clasby et al., Land Owner, Vol. 4, p. 84. (h) Erastus Kimball, Copp's Public Land Laws, p. 295. (1) Hensley vs. Ayers, Land Owner, Vol. 3, p. 53.) Moran and Cady, Land Owner, Vol. 3, p. 4. (*) Farley vs. Gleeson, Land Owner, Vol. 3, p. 38. (1) Peterson vs. Kitchen, Land Owner, Vol. 2, p 181. (m) Porter vs. Johnson, Land Owner, Vol. 3, P. 37. No specific act of settlement, after restoration of the land, is required of a settler whose everyday life can be considered a compliance with the law. But such settler cannot embrace in his claim land not in his possession on which are the improvements of another who, like himself, has settled without the protection of law. A homestead entry made on the day of restoration, of a tract not in the possession of the preemptor, is a legal appropriation of the land as soon as it is subject to entry(*). The land to which a claimant may have a right of possession, although for some valid reason not the actual possession, must be land to which he can assert a valid claim under the preemption law. A trespass upon the public lands will not be sustained under the decision in Atherton vs. Fowler; nor will the claim of a person who is qualified and has complied with law be subject to defeat in favor of an unlawful occupant(b) Where a party has made settlement and filing, and is thereafter sentenced to the penitentiary for a period which will expire after the time in which proof and payment should be made, such proof and payment may be made by a guardian or trustee("). e. SALE AND FORFEITURE. Where an incomplete pre-emption claim is sold or abandoned, the right is forfeited, and where filing, proof and payment are not made as required, the claim is liable to forfeiture; but a sale should not be held to work a forfeiture unless it is voluntary, and made while the party is in possession of his mental faculties (a). A written contract for the sale of growing trees which the purchaser was to cut and remove as soon as the vendor obtained patent is a contract prohibited by the pre-emption law(®). A homestead or pre-emption settler is permitted to cut trees upon his land, for building, fencing, repairs and firewood. Should there be no trees growing upon his land, he may cut trees growing upon the mountain slopes, but only for domestic uses. A verbal sale when accompanied by delivery of the land forfeits the pre-emption right("). Parole evidence is admissible to defeat a deed or written contract on the ground of illegal consideration, duress or fraud. A deed absolute on its face may be shown to be a mortgage(). Mortgages released or otherwise are no bar to the completion of a pre-emption claim. There is no forfeiture declared because of a failure on the part of a pre-emption settler to make proof and payment for unoffered land within thirty months from the time when he should have filed his declaratory statement —provided no adverse settler has made settlement on the land and complied with the law (h). The question of abandonment is discussed at considerable length in Johnson vs. Graybill, Land Owner, Vol 2, p. 100. II. Pre-emption Homesteads. When an individual has made settlement on a tract and filed his pre-emption declaration therefor, he may change his filing into a homestead, if he continues in good faith to comply with the pre-emption laws until the change is effected; the time during which the party has re sided upon and claimed the land as a pre-emptor will be credited upon the period of residence and cultivation required under the homestead laws. In so doing he is required in his firs' homestead affidavit to set forth the fact of a previous pre-emption filing, the time of actual resi dence thereunder, and the intention to claim the benefit of such time. In making final proot on his homestead entry he is required, in addition to the usual affidavit and proof, to make the pre-emption homestead affidavit," below: 16 (a) Corrigan vs. Ryan, Land Owner, Vol. 4, p. 42. (b) Marks vs. Bray, Land Owner, Vol. 8, p. 139 (c) J. T. Benson, Land Owner, Vol. 6, p. 108. (d) Catala vs. Austin et al., Copp's Public Land Laws, p, 313. (e) Webster vs. Sutherland, Copp's Public Land Laws, p. 312. Instructions, Land Owner, Vol. 1, p. 163 (f) Hudsonpiller vs. Queen, Copp's Public Land Laws, p. 312. (g) Philip Waldron, Copp's Public Land Laws, p. 313. by Shreves vs. Eaton, Land Owner, Vol. 5, p. 165. Larson vs. Weisbecker, Land Owner, Vol. 9, p. 6c |