vorced, does not make her the legal wife of such person, so as to disqualify her from entering public lands. But where such polygamous wife allows her pretended husband to control her acts, and maintains her marital relations with him, she cannot be allowed to make an entry of public lands, where the laws governing the same require that the entry must be made for the exclusive use and benefit of the applicant(*). An abandoned wife is regarded as the head of a family, and her rights will receive due consideration. When she and her children are still residing upon the homestead entered by her absent husband, the entry cannot be cancelled for abandonment(Þ). A woman may commute her deceased husband's entry and receive a patent in her own name, and afterwards may make another homestead entry in her own right (C). The entry of a minor, rot the head of a family, is void, and does not exclude him from making a legal entry on attaining his majority(a). Orphan children of other than deceased Union soldiers and sailors, whose widows are dead or married, cannot make homestead entries through guardians(©). A homestead entry cannot be made for an "incompetent" person by his guardian(†). • It is no part of the duties of the registers and receivers of the United States Land Offices to make out applications for homestead or pre-emption settlers("). In cases of simultaneous applications to enter under the homestead laws, the rule is as follows: 1. Where neither party has improvements on the land, it should be sold to the highest bidder. 2. Where one has actual settlement and improvements, and the other none, it should be awarded to the actual settler. 3. Where both allege settlement and improvements, an investigation must be had, and the land be awarded to him who shows the prior actual settlement and substantial improvements, so as to be notice on the ground to any competitor(1). In case of death of homestead settler, leaving no widow or children, the legal heirs may commute or continue residence; the final papers will then be made out in the name of "the heirs." The heirs would not be debarred thereby from making each a homestead entry in his own name(1). A party who neglects to examine the character of land entered by him under the homestead laws must suffer the consequences. He cannot be allowed to make another entry(). Where a homestead claimant's land has become totally valueless for farming purposes by reason of the overflow or back water of a river, he will be allowed to make another homestead entry, with credit for fees and commissions. In the event of a new homestead entry, he will be required to show compliance with the law as though he had made no previous entry(). An application handed to the Receiver after office hours on the street, without the fee, is not a legal application('). Land appropriated for any public use is not subject to entry under the Homstead Laws. The appropriation of land by the Government is setting it apart for some particular use, as Congress set apart the land embraced in the Hot Springs reservation(m). A homestead entry becomes effective only when made at the local office, and not when the affidavit is taken before a county clerk. The only benefit derived from settlement is the privi lege in certain homestead cases of making the required affidavit before the county clerk("). (*) Lyons vs. Stevens, Land Owner, Vol. 6, p. 107. (b) Thompson vs. Anderson, Land Owner, Vol. 6, p. 125. (0) Adolphine Hedensky, Land Owner, Vol. 2, p. 83. (4) Thomas Thompson, Land Owner, Vol. 1, p. 99. M. S. Woodford, Land Owner, Vol. 6, p. 125. Root vs. Smith, Land Owner, Vol. 6, p. 45. ()J. A. Balch, Land Owner, Vol. 1, p. 149. (W. R. Ledford, Land Owner, Vol. 5, p. 165. (1) T. C. Shapleigh, Land Owner, Vol. 5, p. 147. (b) Helfrich vs. King, Land Owner, Vol. 3, pp. 19, 164. (1) R. J. Simonson, Land Owner, Vol. 1, F. 35. (5) J. O. Nightingale, Land Owner, Vol. 4, p. 146. H. J. Johnson, Land Owner, Voi. 4, p. 83. (1) Gregory vs. Kirtland, Copp's Public Land. Laws, p. 228. (-) Hot Springs Reservation, Lani Owner, Vol. 2, p. 100. () G. Zentenhorst, Land Owner, Vol. 1, p 139. Where notices of cancellation of entries are received at the local office after business hours, the land embraced therein is not subject to entry or filing until the usual opening hour on the following morning(a). The right to tax lands of the United States, entered under the homestead laws, does not accrue to the State until the expiration of the period of residence and cultivation, and until the final proof required by law shall have been made and approved, and the final homestead certificate issued (b). Where a second contest was initiated prior to the determination of a prior contest, and the homestead entry in question was cancelled as a result of the first contest, the second contestan has no preference right of entry should the first contestant fail to make entry. The land in that case would be open to the first legal applicant(*). After lands have been offered at public sale and then withdrawn, they may be restored to homestead and preemption entry. Until they have again been offered at public sale, they are not subject to private entry(a). Where the quantity of land sought to be entered is eighty acres and a fraction of an acre more, i. e. is less than eighty-one acres, the fee required is only $5.00—not $10.00(*). A party cannot initiate a homestead claim to land covered by an uncancelled prior homestead entry('). b. RESIDENCE AND CULTIVATION. By making an entry an inceptive right is vested in the settler, and his final title depends on his residence upon and cultivation of the land embraced in his claim. This residence and cultivation must continue five years unless he was a soldier or sailor in the late war (See Soldiers' and Sailors' Homesteads); or if he prefers to pay for his land, as at private entry, he may after six months' settlement and cultivation make the necessary proof. This early payment is called commuting a homestead entry. (See Final Proof and Commutation.) The refusal of the wife to live on a homestead, provided the husband complies with the law, will not injure his rights(). A man and woman, after making each a homestead entry, may marry without invalidating their rights, if the law is complied with as to residence and cultivation. Either homestead may, if they choose, be commuted(1). Where a man and woman marry after each has made a homestead entry of adjoining land, they may live in a house built on the dividing line between the two homesteads(1). Residence in a double house, built on the dividing line between adjoining homesteads, is residence in compliance with the law(3). After a homesteader has completed the term of five years, a further residence is not required to entitle him to patent(). Residence for the period of five years from date of entry on the tract claimed is a compliance with the Homestead Law; but the question of such residence may under proper restriction be investigated at any time before issuance of patent('). Where a homestead claimant has failed to comply with the law in the matter of residence, he may, where he has been prevented by circumstances beyond his control, and his good faith is evident, be allowed additional time to comply therewith("). The homestead entry of a party who failed to establish permanent and exclusive residence (a) George Noble, Land Owner, Vol. 2, p. 34. (b) W. C. Means, Land Owner, Vol. 2, p. 148. George Bates, Land Owner, Vol. 1, p. 155. E. E. Zitman, Land Owner, Vol. 2, p. 155. J. H. Merritt, Land Owner, Vol. 5, p. 147. (0) Bennett vs. Collins, Land Owner, Vol. 8, p. 172. (4) Thomas Helland, Land Owner, Vol. 4, P. 44. on the tract until three and one-half years after date of entry, should be held in abeyance until the expiration of five years from settlement, and his case be submitted to the Board of Equitable Adjudication, established to determine in what cases patents shall issue where the law has been substantially complied with(*). A party who enters a homestead and attempts to acquire title thereto by going upon the land and remaining over night once or twice in six months, fails to establish a legal residence; and where it is shown that such failure to comply with the provisions of the law was not the result of ignorance or of uncontrollable circumstances, the entry should be cancelled("). Such cases as the above should not be submitted to the Board of Equitable Adjudication. Cases going before this Board are limited to those in which the good faith of the claimant appears unquestionable (Ibid). A party while having an actual residence on his claim, may work elsewhere for other people a few weeks at a time. An entry is liable to be cancelled for failure in respect to residence, and the land given to some one else. Residence is not required on an "Adjoining Farm Homestead." There must be continued residence on the original farm, however, and use of the additional land in connection therewith. A Where a homestead settler dies before the completion of his claim, the widow, or in case of her death, the heirs, may continue settlement or cultivation, and obtain title upon proper proof at the right time. If the widow proves up, the title passes to her; if she dies before proving up, and the heirs make the proof, the title will vest in them. Where both parents die, leaving infant children, the homestead may be sold for cash for the benefit of such children, and the purchaser will receive title from the United States; or the patent will issue to the infants on proof of settlement or cultivation for the prescribed period. The law is substantially complied with by continual cultivation for the period of five years by he heirs or devisee, personal residence not being required in their case(©). The sale of a homestead claim by the settler to another party before completion of title is not recognized, and vests no title or equities in the purchaser. In making final proof, the settler is by law required to swear that no part of the land has been alienated, except for church, cem etery, or school purposes, or the right of way of railroads. C. AMENDMENT. Where a party desires to amend his homestead papers on the ground that they do not describe the tract he intended to apply for and has actually settled upon, he must with his application for amendment send to the Register and Receiver an affidavit sustained by the affidavit of two witnesses, wherein he sets forth that he had within six months from date of original application actually settled on the described tract, and give in fuil the character of the improvements made. Where a party desires the cancellation of his entry on account of a prior legal claim having attached to the land so entered, he must send with his application an affidavit, corroborated as before by two witnesses, showing number, date, and nature of the prior claim, and the extent of the improvements, if any, which may have been made(). A homestead party whose entry is cancelled in part for conflict, may retain the remainder and amend his entry to embrace a contiguous vacant tract, not to exceed the quantity in his original entry(c). A claimant has a right to obtain the correction of a clerical error in his entry papers, misdescribing the land settled upon and cultivated(). (*) Thorsten Olsen, Land Owner, Vol. 5, p. 117. (b) Byrne vs. Catlin, Land Owner, Vol. 5, p. 146. (d) General Land Office Instructions, Copp's Public, Land Laws, p. 239 CIRCULAR IN RELATION TO CHANGES OF ENTRY. The following circular of instructions from the General Land Office is so full and explici that it is given at length: DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., August 8, 1878. To Registers and Receivers of U. S. Land Offices. GENTLEMEN: In order to secure uniformity in proceedings upon applications for Change of Entry, attention is called to the following sections of the Revised Statutes and accompanying instructions: SECTION 2369. In every case of a purchaser of public lands, at private sale, having entered at the land office a tract different from that he intended to purchase, and being desirous of having the error in his entry corrected, he shall make his application for that purpose to the Register of the land office, and if it appears from testimony satisfactory to the Register and Receiver that an error in the entry has been made, and that the same was occasioned by original incorrect marks made by the surveyor, or by the obliteration or change of the originai marks and numbers at corners of the tract of land; or that it has in any other wise arisen from mistake or error of the surveyor, or officers of the land office, the Register and Receiver shall report the case, with the testimony, and their opinion thereon, to the Secretary of the Interior, who is authorized to direct that the purchaser is at liberty to withdraw the entry so erroneously made, and that the moneys which have been paid shall be applied in the purchase of other lands in the same district, or credited in the payment for other lands which have been purchased at the same office. SECTION 2370. The provisions of the preceding section are declared to extend to all cases where patents have been issued, or may hereafter issue; upon condition, however, that the party concerned surrenders his patent to the Commissioner of the General Land Office, with a relinquishment of title thereon, executed in a form to be prescribed by the Secretary of the Interior. SECTION 2371. The provisions of the two preceding sections are made applicable in all respects to errors in the location of land-warrants. SECTION 2372. In all cases of an entry hereafter made of a tract of land not intended to be entered, by a mistake of the true numbers of the tract intended to be entered, where the tract thus erroneously entered does not in quantity exceed one-half section, and where the certificate of the original purchaser has not been assigned, or his right in any way transferred, the purchaser, or, in case of his death, the legal representatives, not being assignees or transferees, may, in any case coming within the provisions of this section, file his own affidavit, with such additional evidence as can be procured, showing the mistake of the numbers of the tract intended to be entered, and that every reasonable precaution and exertion had been used to avoid the error, with the Register and Receiver of the land district within which such tract of land is situated, who shall transmit the evidence submitted to them in each case, together with their written opinion, both as to the existence of the mistake and the credibility of each person testifying thereto, to the Commissioner of the General Land Office, who, if he be entirely satisfied that the mistake has been made, and that every reasonable precaution and exertion had been made to avoid it, is authorized to change the entry and transfer the payment from the tract erroneously entered to that intended to be entered, if unsold; but if sold, to any other tract liable to entry; but the oath of the person interested shall in no case be deemed sufficient, in the absence of other corroborating testimony, to authorize such change of entry; nor shall anything herein contained affect the right of third persons. It will be observed that section 2369 is intended to afford relief to purchasers of public lands at private sale whose errots in entries have been occasioned by the original incorrect marking by the surveyor, or by the subsequent change or obliteration of those marks, or by any other error originating either with the surveyor or the land officers. SECTION 2370 extends the foregoing provision to cases where patents have been or may be issued. SECTION 2371 extends the provisions of both the preceding sections to errors in the locatiou of land warrants. SECTION 2372, further extending these provisions, applies to all classes of entries, and also mbraces cases where the error was not occasioned by any act of the surveyor or of the land officers, but restricts changes of entry to cases in which the tract erroneously entered does not in quantity exceed one-half section, and where the certificate of the original purchaser has not been assigned or his right in any way transferred. Change of entry may therefore be allowed in accordance with these provisions, in respect to either of the following classes of cases, viz. : Purchases at public sale. Private entries. Pre-emption entries. Military bounty land-warrant locations. Scrip locations, etc. A change of entry, when allowed, will be made from the tract erroneously entered to that intended to have been entered, if vacant; but if not vacant, the change may be made to any other tract liable to entry. APPLICATION FOR CHANGE OF ENTRY. The application must, in all cases, be made by the party making the original entry, or, in case of his death, by his legal representatives, not being assignees or transferees. The applicant must file an affidavit showing the nature and particular cause of the error, and that every reasonable and proper precaution had been used to avoid it, accompanied by the best corroborative testimony that can be procured. The oath of the party interested is not of itself sufficient. The affidavit must also show that the land erroneously entered has not been transferred or otherwise encumbered. This evidence, together with your joint opinion as to the existence of the mistake, and the credibility of each person testifying thereto, will be forwarded for the decision of this office. Where a patent has not been issued, you will require the surrender of the duplicate receipt, or certificate of location (as the case may be), accompanied by the affidavit of the party that he has not sold, assigned, nor in any way encumbered the title to the land described in the application, and that said title has not become a matter of record. Where a patent has issued it must be surrendered. Where the title has become a matter of record, and in all cases where patent has issued, you will require a quit claim deed, or release, to the United States, which deed must be executed, acknowledged, and recorded in accordance with the laws of the State or Territory in which the land is situated. You will also require a certificate from the county clerk, or other officer having charge of the books in which any conveyance of the land is required to be recorded to give it validity, stating that the records of such office do not exhibit any conveyance or other encumbrance of the land in question. In the case of a married man, a properly executed release of dower by the wife must be furnished. WHEN CHANGE OF ENTRY IS ALLOWED. In all cases of application for a change of entry, when the evidence is satisfactory, a new Register's certificate will be authorized by this office, which certificate will bear the current sumber and date, and will be indorsed with the authority for such change. The tract to which the change is allowed, its area, etc., will be reported on the proper monthly abstracts, with a noting in red ink of the items credited from the old certificate and not included in the footings. Any excess over an original amount will be accounted for as in case of other excesses. Very respectfully, Approved: C. SCHURZ, Secretary. J. A. WILLIAMSON, Commissioner. 3 |