WELCH vs. DUNCAN ET AL.

Desert Land Contest.-On the cancellation of an entry under contest, the land covered thereby is at once open to settlement and entry, subject only to the preferred right of the successful contestant.

During the period accorded the successful contestant for the exercise of his preference rights, the application of another to enter may be allowed, subject to the right of the contestant. .

Right of Successful Contestant.-The right conferred on the successful contestant by section 2, Act of May 14, 1880, is personal right which cannot be transferred to another.

A preferred right of entry cannot be acquired through a contest prosecuted in the name of another.

The fact that the homestead applicant failed to tender the fees and commissions, and file his preliminary affidavit, will not defeat his right of entry where the application was rejected on the ground that the land was excluded from entry by the preference right of a successful contestant.

First Assistant Secretary MULDROW to Commissioner STOCKSLAGER, August 13, 1888. (7 L. D., 186.)

c.-RELINQUISHMENTS AS AFFECTING CONTESTS.

MARY STANTON.

Desert Land Entry-Relinquishment.-On relinquishment of a desert land entry the land covered thereby is held open to entry and settlement without further action on the part of the Commissioner of the General Land Office.

Preference Right.-A desert land entry may be allowed subject to the preference right of a successful contestant.

Secretary VILAS to Acting Commissioner STOCKSLAGER, March 15, 1888. (15 C. L. 0., 163.)

HOYT vs. SULLIVAN.

Rules of Practice.--No rule formulated for the administration of the law will be permitted in its operation to defeat a statutory right.

Non-compliance-Right of Entry. At the moment the original timber culture claimant fails to comply with the law, the right of another legal applicant to enter the land under the homestead or timber culture law is complete.

Relinquishment-Contestant.—While upon relinquishment of a timber culture entry, the land is subject to entry by a qualified party, such right may be subject to the right of another party who has duly contested and procured the cancellation of the entry. A relinquishment may be shown to be an independent transaction, and not evidence in the contestant's favor, in which case the land will be open to the first legal applicant. Secretary TELLER to Commissioner MCFARLAND, October 25, 1883.

I have considered the case of Melvin A. Hoyt vs. B. H. Sullivan, involving timber culture entry for the S. E. 4 of Section 3, Township 103 north, Range 64 west, Mitchell, Dakota, on Hoyt's appeal from your decision of June 13, 1883, canceling his entry for said land.

It appears that Luther B. Sanborn entered the above described tract under the timber culture laws, October 28, 1880, and that October 28, 1881, Sullivan initiated a contest against said entry on the ground of abandon

ment.

December 9, 1881, a hearing was had, and Sullivan introduced evidence showing that Sanborn up to the date of the hearing had in no manner cultivated, broken or improved said tract. Sanborn did not appear at the hearing. The finding of the local office is apparently endorsed on the back of the contest affidavit in the following terms, "Declared forfeited and appeal notice issued," but the endorsement bears no date or signature.

March 10, 1882, the local office on motion of one C. S. Rowe, claiming to be Sanborn's attorney, dismissed Sullivan's contest without notice to the said Sullivan, and allowed the said Rowe to initiate a contest against Sanborn's entry in his own name. The only record that appears of the action of the district officer dismissing Sullivan's contest, is found endorsed on his contest affidavit as follows: "On re-examination of the evidence this case is dismissed, March 10, 1882. Wm. Letcher, Rg."

April 26, 1882, Sullivan filed in the local office a notice of appeal from the decision of March 10, 1882, alleging it to have been made without notice to him or his attorney.

March 16, 1882, Sullivan began a second contest against Sanborn's entry, but this contest was dismissed on the completion of Rowe's contest before the local office.

Pending Sullivan's appeal from the decision of the local office dismissing his first contest, November 17, 1882, Sanborn filed a relinquishment of his timber culture entry, Rowe withdrew his contest, and Melvin A. Hoyt made timber culture entry for the same land.

November 22, 1882, Sullivan applied to enter the land, but the application was rejected on the ground that the land was embraced within Hoyt's entry, and from this decision Sullivan appealed.

January 25, 1883, your office took action on Sullivan's first appeal, and dismissed his contest on the ground that it was prematurely initiated.

April 21, 1883, you decided that as neither Sullivan nor Rowe appeared to have filed application to enter the land at the time of initiating their contests, neither of them gained anything thereby; and you allowed Hoyt's entry to stand subject to Sullivan's right to show that he did apply to enter the land at the initiation of his contest.

June 13, 1883, on review, you modified your decision of April 21, 1883, and canceled Hoyt's entry "because erroneously allowed, in conflict with Rule 53," and held the land open to the first legal applicant. From this decision Hoyt appeals.

Rule 53 of the Rules of Practice prescribed by your office and this Department provides, that after the papers in an appeal have been sent up by the local office, such office will thereafter take no further action affecting the disposal of the land in contest until instructed by the Commissioner. The reason for the adoption of this rule is obvious. In the absence of such a provision, a multiplicity of suits would frequently arise involving practically the same question, and thus encumber and obscure the record to no good purpose.

But no rule formulated for the administration of the law will be permitted in its operation to defeat a statutory right. Section 3 of the Act of June 14, 1878 (20 Stat., 113), provides "That if at any time after the filing of said affidavit and prior to the issuing of patent for said land, the claimant shall fail to comply with any of the requirements of this act, then and in that event, such land shall be subject to entry under the homestead laws, or by some other person under the provisions of this act: Provided, that the party making claim to said land, either as a homestead entry or under this act, shall give, at the time of filing his application, such notice to the original claimant as shall be prescribed by the rules established by the Commissioner of

the General Land Office; and the rights of the parties shall be determined as in other contested cases."

From the foregoing it will be seen that the right to enter the land, under the homestead or timber culture laws, is complete by express provision of the statute, in any legal applicant, at the moment when the original claimant shall fail to comply with any of the requirements of the act. It will also be observed that the right to contest a timber culture claim is limited to an applicant for the land; hence any attempt to initiate a contest, without having made application to enter, confers no legal standing upon the contestant, under Section 3 of the act referred to above (Bundy vs. Livingston, 9 Copp's L. O., 173), nor jurisdiction upon the local office to entertain such contest.

The Act of May 14, 1880 (21 Stat., 140), provides, "That when preemption, homestead or timber culture claimant shall file a written relinquishment of his claim in the local land office, the land covered by such claim shall be held as open to settlement and entry without further action on the part of the Commissioner of the General Land Office.

"Section 2. In all cases where any person has contested, paid the land office fees, and procured the cancellation of any pre-emption, homestead or timber culture entry, he shall be notified by the Register of the land office of the district in which the land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands," etc.

Now under the first of these provisions the land is, upon relinquishment, open to the entry of the first legal applicant as a statutory right. But under the second, that right may be subject to that of another who has contested, paid the office fees, and procured the cancellation. This, however, in case of relinquishment, can only be so where the relinquishment is actually or constructively the result of the contest, and so made to inure to the benefit of the contestant after cancellation. And, generally, where the contest has been properly brought, a relinquishment has been construed as evidence in aid of the suit, and not allowed to bar the preference right. But this is presumptive merely, and if it be conclusively shown that it was an entirely independent transaction, and not evidence of prior abandonment, it will not so inure to aid the original contestant. And if the contest is not properly brought, and is for that reason dismissed, no cancellation can result from it, and no preference right attaches to it. Upon relinquishment after such contest, and in no wise connected with it, the land is open to entry as in other cases, under section one of the act.*

At the time that Hoyt applied to enter the land it was open to such entry. The original claimant, Sanborn, having forfeited his rights, and relinquished his entry, the local office properly allowed Hoyt's application, subject to outstanding rights of other parties. The illegal contest of Sullivan, then pending, could not deprive Hoyt of his statutory right to enter the land, nor operate to remove the land from a proper disposition by the district officers. (Bivins vs. Shelley, 10 Copp's L. O., 212). The allowance of Hoyt's entry was not in contravention of any right acquired by Sullivan, but subject to the same, if any existed; and you subsequently properly decided that Sullivan's contest was without foundation.

Your decision cancelling Hoyt's entry is therefore reversed, and said entry as allowed by the local land office held intact.

* See Mitchell vs. Robinson, 3 L. D., 546; 12 C. L. O., 118.

MCCALL vs. MOLNAR.

Relinquishment-Contest-Entry.-While a contest is pending, the timber culture entryman may file a relinquishment, and, if qualified, make homestead of the same land. But such homestead entry is subject to the contestant's rights.

Contest-Relinquishment-Evidence. When a relinquishment is filed as the result of a contest, no further evidence in the contestant's behalf is needed, for the entry no longer exists and the record is cleared.

Timber Culture Entryman-Improvements as a Homesteader.-Where a timber culture entryman, in anticipation of failure to comply with the law, erects a house and cultivates the land, he cannot be allowed a homestead entry on the land in the face of a contestant. (See Banks vs. Smith, 10 L. O., 226.)

Attorney Acting as Notary Public--Affidavit-Testimony. In absence of any provision in the local law or in the rules of practice, forbidding the attorney in a case from acting as a notary public in the preparation of an affidavit for his client, there is no reason for declaring a contest illegal because based upon such affidavit. Testimony in a case should not be taken before a notary public who is the attorney of record.

Secretary TELLER to Commissioner MCFARLAND, June 27, 1884.

I have considered the case of William McCall vs. George Molnar, as presented by the appeal of said Molnar from your decision of December 27, 1883, allowing McCall to make timber culture entry for the W. 1⁄2 of the N. W. 4 and W. 1⁄2 of the S. W. 4 of Sec 32, Tp. 7 N., R. 65 W., Denver, Colorado.

*

*

On behalf of Molnar it is said that the relinquishment could not inure to the benefit of the contestant, except after a hearing and judgment thereon, pursuant to notice; that the improvements and settlement of Molnar precluded timber culture entry for the land; and that McCall's contest was void, because the affidavit of contest was executed before one of his attorneys, acting in the official capacity of notary public.

Now it is well settled that when a relinquishment is filed, it takes effect at once, so far as relieving the land covered thereby from the existing entry is concerned, (Whitford vs. Kenton, 10 L. O., 374; Glaze vs. Bogardus, 10 L. O., 232, 11 L. O., 54,) and that land covered by the entry of a timber culture claimant in default, is open to the entry of the first legal applicant. With this right of entry goes the right of contest, in order to clear the record of the existing entry. Hence, where a legal contest against such an entry is pending, and a relinquishment is filed, the suit of the contestant is successfully terminated, if such relinquishment be filed as the result of the contest. No further evidence is required in aid of the contest, for the contested entry has ceased to exist, and the record is clear.

By express provision of the first section of the Act of May 14, 1880, (21 Stat., 140,) where land covered by a pre-emption, homestead or timber culture claim is relinquished, the land thus relinquished becomes open to settlement and entry, without any further action on the part of your office. In this case, when the relinquishment was filed, the application of McCall to enter the land was pending, and took effect instantly as a legal application for public land.

The local office properly enough allowed Molnar to make homestead entry for the land after filing his relinquishment, but such entry was subject to the assertion of McCall's superior right as a successful contestant.

Molnar will not be permitted to assert any right as a homestead claimant which he attempted to initiate while holding the land under the appropriation of the timber culture entry. While that entry existed, the land was not public land, and he could only, during such time, acquire further rights to the land by complying with the timber culture law.

The third exception to your decision does not seem to be well taken.

In the absence of any provision in the local law or in the Rules of Practice adopted by the Department, forbidding the attorney from acting as a notary public in the preparation of an affidavit for his client, I see no reason for declaring a contest illegal, becaused based upon an affidavit of contest thus executed. In the case of Sweeten vs. Stevenson (2 Brainard, 42), where not only the affidavit of contest, but the testimony in the case, was taken before the attorney of contestant, I held that such action would not be recognized by the Department, but it was not intended in said decision to formulate a rule that would render inoperative contests already begun under a different practice.

Your decision is affirmed, Molnar's entry will be canceled, and McCall allowed to enter for said land.

WEBB vs. LOUGHREY ET AL.

Relinquishment.-A relinquishment filed pending contest does not defeat the right of the contestant to be heard on the charge as laid by him; and while his preference right is dependent upon his ability to establish said charge, the relinquishment is presumptively the result of the contest, though such presumption may be overcome.

If the contestant does not invoke the aid of the relinquishment, but independently thereof proves the facts alleged by him, the relinquishment has no effect on his preference right. First Assistant Secretary CHANDLER to the Commissioner of the General Land Office, Octo ber 3, 1889.

This record involves the rights of the contestant of a timber culture entry, and of one who files relinquishment of the entry and makes homestead entry of the land, subsequent to the initiation of such contest.

On May 8, 1882, William Loughrey made timber culture entry for the E. 1⁄2 S. E. 4, N. W. 4, S. E. 4 and S. W. 4 N. E. 4, Sec. 6, T. 11 S., R. 3 W., S. B. M., Los Angeles, California.

On December 29, 1886, George W. Webb filed affidavit of contest against said entry, alleging failure to comply with the law in the matter of planting, and also an application to make homestead entry of the tract. The affidavit of contest is dated on December 27, and indorsed, "Filed December 30, 1886," but it is sufficiently established that it was actually filed on December 29. It was executed before J. O. W. Paine, notary public in San Diego county, California, and transmitted by mail.

On December 27, 1886, the date of the affidavit of contest, Loughrey executed a relinquishment of said entry before Chauncey Hayes, notary public, at Oceanside, San Diego county, California. On December 30, 1886, said relinquishment was filed by one Jose A. Peters, the entry was canceled, and Peters allowed to make entry of the tract. These papers also arrived by mail.

On December 31, notice on Webb's contest issued and was served on Loughrey. Peters was not notified. On March 3. 1887, hearing was had before the local officers, when Webb appeared and submitted testimony. Loughrey made default. The local officers held that the testimony showed a failure to comply with the law on the part of Loughrey, as alleged; that the contest was prior to the relinquishment, and the latter inured to contestant's benefit; and recommended the cancellation of Peters' entry, and the allow ance of Webb's. Peters was notified of said decision and appealed. Your office on March 15, 1888, held that Peters' rights were subject to those of contestant, and directed the local officers to notify Webb that he would be allowed thirty days to perfect his entry by "showing his qualfications to do so." Pending such action, or in default thereof, Peters' entry was allowed to stand.