it, but which he never used. He did not replow the land plowed in January, nor did he ever cultivate any portion of it. Since January, 1878, he has been the traveling agent in Kansas of a Pittsburgh (Pa.) plow company, and since that date does not appear to have had any Axed habitation in Kansas.

On these facts the local officers found that Spaulding had failed to establish a residence on the land, and recommended a cancellation of his entry. Your decision holds his entry intact, because at the date of the initiation of the contest but eight months had elapsed from the date of his entry, and as there was not evidence of bad faith, it would be contrary to the lenity the Department extends to claimants under the homestead laws to forfeit it.

The clemency of the government should be extended in cases only where the good faith of the party is manifest, where there is no adverse claim, and the question is simply between the government and the party, and where the failure to comply with the law results from causes beyond the reasonable control of the party.

The homestead law requires residence on the land to be established within six mouths from the date of entry. Spaulding failing to do this, Peter commenced his contest, and under the act of May 14, 1880, is entitled to enter the land if the entry is canceled. A contestant should not be deprived of the fruit of his contest unless there are controlling reasons why the entry should not be canceled. None are presented in this case. Spaulding assigns no excuse for his neglect to make the land his home. The fact that he was engaged in business elsewhere, having no relation to the land or his entry, does not justify his laches in this respect. Indeed, he does not appear to have been resident in the State of Kansas, except for a temporary business purpose; and for the ten months preceding the bearing he made no attempt to establish a residence on the tract, or to cultivate or improve any portion of it, with the exception named.

Regarding his acts, therefore, as an endeavor to acquire a tract of the public land without complying with the conditions which Congress has imposed upon such acquisitions, and as wanting in good faith, I modify your decision and direct cancellation of the entry.

HOMESTEAD-BOARD OF EQUITABLE ADJUDICATION.
MCCARTHY ?. DARCEY.

Residence is a material requirement of the homestead laws.

Where rights of other parties are affected or an adverse claim exists, an entry should not be submitted to the board of equitable adjudication—a contestant's preferred right under the act of May 14, 1880, is in the nature of an adverse claim. Secretary Teller to Commissioner McFarland, October 20, 1882.

I have considered the case of William F. McCarthy v. Michael Darcey, involving the latter's homestead entry made January 30, 1880, upon the NE. of Sec. 9, T. 10, R. 5 W., Concordia, Kans., on appeal

by McCarthy from your decision of November 18, 1881, allowing the entry to stand, with a view of submitting Darcey's final proof, when made, to the board of equitable adjudication.

This contest was commenced October 4, 1880, on the ground of abandonment, and the hearing was in November and December following. The testimony shows that Darcey improved and cultivated the tract as required by law, and the only question involved is that of residence. The local officers found that he had failed to comply with the law in this respect, but in view of the short time intervening between the dates of entry and contest, recommended that the case be submitted to the board of equitable adjudication. Your decision follows that recommendation.

I have examined the testimony and reach the same conclusion as to Darcey's want of residence on the tract. Residence is a material requirement of the homestead law, and the reasonable time of six months is allowed the party for that purpose. Darcey had not only down to the date of initiation of the contest, but to the date of hearing (and to its continuance on December 8, a period of more than ten months) neg. lected to reside on the land. He offers no excuse for his laches, and was not ignorant of the requirement of the law in this respect, for he had already contested a prior entry on the same tract, and procured the cancellation thereof on allegations of abandonment, following which he made his own entry. I find no reason to justify his non-compliance with the law, and the case is not one, in my opinion, for the board of equitable adjudication. The statute (Sec. 2457 R. S.) does not authorize such reference in cases where the right of another claimant may be prejudiced, or where there is an adverse claim.

This contest having been commenced in October 1880, was subject to the provisions of the act of May 14, 1880, which gives to a contestant the preferred right to enter the tract, within a specified time from cancellation of the entry which he procures. The rights of McCarthy might be prejudiced by reference of the case to the board, and his is in the nature of an adverse claim.

I modify your decision, and direct cancellation of Darcey's entry.

SOLDIERS' DECLARATORY STATEMENT-RESIDENCE.

GEORGE H. GARDNER.

A soldier who files or causes to be filed a declaration of his intention to enter a tract of land under the homestead law must make a legal entry of the land within six months, and must remove to the tract so entered and reside upon it and cultivate it for the period prescribed by law before he can acquire title to the land. Filings or entries made by soldiers when they do not settle upon the land and have no intention of doing so are false and fraudulent.

Commissioner McFarland to Geo. H. Gardner, New York City, November 22, 1882.

I am in receipt of your letter, inclosing a copy of a circular purporting to be issued by Gazzam & Co., "relative to the procurement of sol

diers' homestead entries." You state that yourself and several of your friends have given "Gazzam & Co." powers of attorney to locate lands for you, and paid them $15 each; that you were afterwards called upon for an assessment of $10; that "Gazzam & Co." have closed up their office and left town; and you wish to know whether there is any way by which you can recover the money so paid.

You are informed that the alleged firm of "Gazzam & Co." is unknown to this office; that the circular inclosed by you is a deception; and that the statements and assurances contained therein are false in many particulars and misleading in all.

A soldier who files or causes to be filed a declaration of his intention to enter a tract of land under the homestead laws must make a legal entry of the land within six months, and must remove to the tract so entered and reside upon and cultivate it for the period prescribed by law before he can acquire title to the land. Filings or entries made by soldiers when they do not settle upon the land and have no intention of doing so are false and fraudulent.

You were advised in this circular of the requirement of personal entry and residence; but it is dishonestly added that if "anything should prevent you from going on to perfect your entry, we can probably dispose of the right acquired by your declaratory statement and location on such terms as to make your investment a profitable one."

This is the gist of the whole matter. The proposition is that the professed attorney will file declarations of the intention of soldiers to make entries of public land and afterwards sell the soldier's right, ostensibly for the soldier's benefit.

The "investment" which is to be made profitable is the money paid to the attorney for his fees. The "right" which you are led to believe may be sold is the personal right of the soldier to make an entry of the land himself. This right is not transferable; consequently the soldier who does not go upon the land in person acquires no rights and has nothing to sell. The phrase "your location" is delusive. There is nc "location" of land by the mere filing of a declaratory statement.

What the attorney has to sell, and what he does sell (unless he utilizes them otherwise himself), are your powers of attorney, which enable him, or some confederate to whom those powers are transferred, to make a fraudulent filing in your name.

When the filing is made, which is done by the last party in whose hands your powers fall, this last party sells his own relinquishment of your filing to some honest settler upon whose ignorance or credulity he can successfully impose.

The filing does not "hold the land" against an actual settler; but as many settlers are not aware of this fact, or do not wish to incur the risk of contesting a claim of the merits of which they are not informed, they are frequently induced to buy the attorney's relinquishment.

Thus the only results of your effort to avail yourself of the plausible promises of the "locating agent" are that you have been implicated in an illegal transaction, and have lost the money paid to the agent or attorney, while your powers of attorney have been used to defraud some other soldier or settler who is actually trying to find a home on the public lands.

I am in receipt of letters from soldiers in different parts of the country stating that they have been victimized in the same way as yourself, through similar circulars emanating from various sources, or upon the application of traveling agents making similar representations in per

son.

I desire earnestly to warn all soldiers against impositions of this character. It should be thoroughly understood that a soldier can acquire no right to 160 acres, or to any other number of acres, of public lands unless he wants to remove to the land, live upon it, and culti vate it. As he cannot sell what he does not possess, and as he has no land, nor any right to any land, in the absence of such removal, residence, and cultivation, there is no money to be made through the agency of land attorneys, and no land to be obtained by him unless he becomes a settler.

Whether there is any way by which you can recover the money paid by yourself and your friends to "Gazzam & Co." is a matter upon which I cannot advise you.

ADDITIONAL HOMESTEAD ENTRY.

EDWARD R. CHASE.

The failure of the local officers to properly note upon their records an original application and amendment cannot jeopardize a claimant's right.

Secretary Teller to Commissioner McFarland, December 12, 1882.

I have considered the appeal of Edward R. Chase from your predecessor's decision of May 31, 1881, rejecting his application to make additional homestead entry under the provisions of the act of March 3, 1879 (20 Stat. 472), of lots 1 and 2 of Sec. 30, T. 36 N., R. 62 E., Eureka district, Nevada, such entry to bear date as of December 19, 1879.

It appears from the record that Chase filed declaratory statement No. 124, April 28, 1871, for the N. of NW. SE. † of NW. 4, and the NW. of SE. of Sec. 30, T. 36 N., R. 62 E., which tracts are not contigu

ous.

In May, 1875, he applied at the local office to so amend said filing as to embrace one hundred and sixty acres of contiguous tracts, but specified no particular tracts. Such application was allowed pursuant to your office letter of the 26th of said month, which prescribed "that he would be allowed to amend by taking forty acres adjoining the residue of his claim, in lieu of the NW. of SE. of said section 30." August 20309-VOL 1- -6

11 ensuing, the register reported that Chase had appeared at the local office June 21 preceding and made homestead entry No. 63 of the E. of NE. of said section in lieu of amending his filing. October 18 ensuing, he applied to so amend his entry as to embrace the E. of the NW. of said section; which application was allowed (pursuant to your office letter of July 19, 1877, deciding the case of E. R. Chase et al. v. Buron et al., from which decision no appeal has been taken), as it appeared to be "the land he intended to enter, and which he supposed he had entered until the day he made his application, (and) that all his improvements, to the value of $2,000, are situated upon the said E. of NW. of Sec. 30."

Under date of January 11, 1879, your office advised the register and receiver that Chase's entry had been corrected upon your office records in accordance with his application to amend the same, but that his right to the tract claimed could not antedate June 21, 1875, the date of his entry, and that he would not be allowed to make final proof until the expiration of five years from said date, unless he could show that he was entitled to the benefit of section 2304, R. S. September 10 ensuing, your office modified the foregoing letter of instructions by directing the register and receiver to advise Chase to call at the local office and amend his homestead application by writing across the face thereof the correct description of his homestead claim, and to insert the words " or the act approved May 27, 1878," after " section 2304, R. S.," in said letter of June 11, 1879.

Under date of January 28, 1881, your office advised the register and receiver that "the homestead entry of Edward R. Chase is for the E. of NW. 4 of Sec. 30, 36 N., 62 E., and he paid $16 fee and commissions. The tract book sent to your office erroneously showed the government fee paid as $5 only"; that said record, when sent, correctly showed the entry to be of the E. of NE. of said section; that Chase amended his homestead application September 25, 1879, so as to describe the E. of NW.; that they were instructed by letter of November 13, 1879, to amend their record accordingly, which should have been done upon its receipt, and if this had not been done, that they should do so without further delay; and if Chase should present his entry papers pursuant to instructions aforesaid, "he will be entitled to make additional entry for lots 1 and 2 of NW. 1, said section, without payment of fees, if said tracts remain vacant.

Thus it appears in the light of the foregoing summary of the history of this case that Chase's application in question was regularly and properly made at a time when the tract applied for was vacant public land, and therefore subject to such entry. The failure or refusal of the register and receiver to accept and properly note upon their office records his original application and amendment of the same could not jeopard his rights in the premises.

Your decision is accordingly reversed.