2. FRAUDULENT ENTRY.

ASSIGNMENT.—FRAUD.

JOAB LAWRENCE.

Where three desert-land entries, aggregating 1,760 acres, were assigned on the day they were made to a third party, and the evidence shows that they were really made for the benefit of the assignee, the entries are held to be illegal, because in violation of the provision of the law which restricts one person to an entry of 640 acres. The entries are held to be fraudulent.

Secretary Teller to Commissioner McFarland, April 24, 1884.

SIR: I have considered the appeal of Joab Lawrence from your de cision of June 22, 1883, cancelling desert-land entries Nos. 76, 77, and 78, made respectively by Joseph Wise, John Lawson, and Edmund Bird, upon certain tracts in the Salt Lake City, Utah, land district.

Lawrence claims to be the legal assignee of these entrymen, entitled to all their rights and to receive patents for the tracts in his own name. The act of March 3, 1877 (19 Stat., 377), authorizes any citizen of the United States or any person of requisite age who has filed a declaration of intention to become a citizen, on payment of 25 cents an acre, to file a declaration in the proper local office that he intends to reclaim a tract of desert land, not exceeding one section, by conducting water upon the same within three years thereafter, and that at any time within such three years, upon satisfactory proof to the local officers of the reclamation of the tract, and upon payment of the additional sum of $1 per acre for a tract not exceeding 640 acres to any one person, a patent shall be issued to him:

Provided, That no person shall be permitted to enter more than one tract of land, and not to exceed 640 acres, which shall be in compact form.

Your circular instructions of March 12, 1877, required as preliminary to the filing of such declaration satisfactory proof in writing by at least two disinterested and credible witnesses, that the land applied for was of the character contemplated by the act, whereupon the local officers, upon payment of the 25 cents per acre, were authorized to receive and file the declaration and to issue a certificate to the effect that if within three years therefrom the entryman, or his assignee or his legal representatives, should prove reclamation of the land and pay the additional $1 per acre, he or they should be entitled to receive a patent therefor, under the provisions of the act, and that at any time within three years from the date of the declaration the proper party may make satisfactory proof of having conducted water upon the land.

The declarations in question were each filed, and the 25 cents per acre was paid, May twenty-fourth, eighteen hundred and seventy-seven; the proof in the case of Wise, who applied for 480 acres, consisting of the affidavits of Bird and the appellant, Joab Lawrence; that in the

case of Lawson, who applied for 640 acres, being the affidavits of Bird and Lawrence; and that in the case of Bird, who applied for 640 acres, being the affidavits of Wise and Lawrence. (The latter affidavit was prepared for the signature of Lawrence, although, through mistake probably, he omitted to sign it. That he was sworn as a witness for Bird appears from the certificate of the local officers that the "above witnesses are credible and respectable persons;" but in view of the facts I cannot think he was a "disinterested" witness, as required by your circular.) Upon the same day a certificate was issued to each of the entrymen, certifying that if he, or his assignee or legal representatives, should make proof of the reclamation and pay the additional sum required within three years from that date, he or they should be entitled to patent under the provisions of the act; and upon the same day each certificate was assigned to Lawrence, and he was authorized to receive a patent for the lands, the assignment by Lawson being witnessed by himself and Bird; that in the case of Wise by Bird and another, and that in the case of Bird by Wise and another; and a marginal note of each assignment was entered on the record as follows: "Assigned to Joab Lawrence May 24th, 1877."

It also appears that upon the same May 24th Wise and Lawson were each made citizens of the United States, apparently under section 2167 of the Revised Statutes, without having previously filed the declaration of intention to become a citizen required by section 2165.

Pursuant to your instructions of August 28, 1880, each of these entrymen was notified to show cause why his entry should not be canceled for failure to comply with the law, but neither filed (nor did Lawrence) objection to the cancellation. October 14, 1882, the local officers transmitted to you the separate affidavits of one Hoyer, one Free, and one Fox, alleging that no steps had been taken for reclamation of the lands. in question, and applying for leave to contest the validity of each entry; and November 10th and 11th following you held the entries for cancellation, but allowed the entrymen sixty days within which to state the character and extent of their efforts to reclaim the land. They made no response, but subsequently Lawrence filed an affidavit (and still later others) to the effect that by virtue of his assignments he had made efforts to reclaim the land, and had expended therein several hundred dollars, and that he did not know of the cancellations until January 10, 1883; but it is admitted that no part of the land embraced in either entry was reclaimed within said three years. The case also fails to show that any bona fide effort was made to such end by any one within that time, or that either of the entrymen has been heard of in connec tion with their entries since the dates thereof. So far as they are concerned, they have wholly abandoned the case, whether as parties or witnesses.

Your decision holds that under my predecessor's decision of April 15, 1880, in the case of Downey (Copp v. 7, p. 26), desert-land entries

are not assignable, and that Lawrence acquired no right by his assign. ments.

It is not necessary to consider this question, nor the want of harmony between my predecessor's decision and your circular of March 12, 1877, because these entries were, in my judgment, wholly in violation of law. The act of March 3, 1877, limits an entry by one person to 640 acres. These three entries aggregate 1,760 acres, and under the facts the conclusion seems to me irresistible that they were each made for the benefit of Lawrence, he using the entrymen for doing that which he alone could not do. But one is not permitted to do and accomplish indirectly, under a statute, that which he cannot do directly, and thus defeat its policy and purpose. This whole transaction manifests an unmistakable purpose on the part of Lawrence to acquire 1,760 acres of land, when the law restricts one person to an entry of 640 acres, and is in fraud of the act.

In view of the whole case, showing that the entries were, in fact, made for the use and benefit of Lawrence, but in the names of the entrymen, and that the lands were not reclaimed within the time allowed therefor, I affirm your decision.

Motion for reconsideration denied by Secretary Teller June 30, 1884.

3. RELINQUISHMENT.

PURCHASE-REINSTATEMENT-NOTICE.

JOSEPH WILLIAMS.

Reinstatement of entries at request of third parties refused.

Purchasers before patent take with notice of all defects, and of contingency that title may not be perfected.

The Government cannot undertake to enforce private contracts by giving substance to an empty conveyance.

Commissioner McFarland to Curtis & Burdett, Washington, D. C., February 21, 1883.

GENTLEMEN: On September 6, 1882, you filed a motion in this office to reinstate Eureka, Nev., desert-land entry No. 158, made by Joseph Williams, May 19, 1879, and cancelled by relinquishment August 4, 1882.

You also desired that your letter should be treated as a protest against the approval of the selection made by the State of Nevada upon the application of the said Williams, which application embraces a certain eighty-acre tract in question.

In this proceeding you appear as attorneys for Messrs. F. O. Matthiessen and L. B. Ward, who claim to have derived certain interests in said land from Williams through intermediate parties.

Mr. Williams, by his attorney, protests in his turn against the re

instatement of his desert-land entry, which he states he voluntarily relinquished for the reason that he could not comply with the law.

You file statements showing the nature of the transactions between the New Philadelphia Silver Mining Company and Mr. Williams, and a copy of a deed from Williams purporting to convey to said company whatever rights he possessed to the eighty acres in question, the consideration mentioned being the sum of $5,000.

You state that the land is used as a site for a stamp mill which has been erected thereon at a cost of over $50,000, and that by the failure of Williams to obtain title under his desert-land entry, and his ultimate relinquishment of that entry, your clients have been defrauded.

Mr. Williams upon his own part submits a statement of the business transactions referred to, and sets up certain claims of his own against opposite parties to the individual controversy.

With these personal matters this office can have nothing to do. The only questions that can arise in respect to desert land entry No. 158, are whether said entry was properly canceled, and, if so, whether there is good cause shown for its reinstatement, or any proper application before me which could be considered in that behalf.

The relinquishment and cancellation of the entry are in due form, and all the proceedings appear to have been regular.

It is admitted by the party to the entry that the land was not reclaimed. He does not ask for the reinstatement of his entry, and no other person is authorized to make such application in his name. Neither does any cause appear why the entry should be reinstated on its merits.

This office cannot undertake to enforce the obligations of private contracts by attempting to compel a party to take title to land which be does not desire, and to which he has no legal claim.

It is an established principle in the administration of the land laws that purchasers before patent take with notice of all defects, and of the contingency that title may never be perfected.

They are not innocent purchasers, and if their conveyances prove empty they can have no recourse upon the Government to give substance thereto.

The doctrine laid down by Mr. Justice Miller in the case of Root v. Shields (1 Woolworth C. C., 342), has been uniformly recognized and followed as the correct rule of law applicable to such cases.

The question of the validity of the State selection will be determined in due course of action thereon by this office.

4. SETTLEMENT.

CONTINUOUS RESIDENCE-OCCUPATION.

BARROTT v. LINNEY.

A party who placed on a desert-land claim a few timbers loosely outlining a house, and then moved away to engage in business elsewhere, can claim no rights as a settler on the land when the desert-land entry is cancelled. A naked settlement, without continued residence or other evidence of occupation, is not such a continuous claim to the land as would, after cancellation, have any legal effect. Acting Secretary Joslyn to Commissioner McFarland, July 30, 1883. SIR: I have considered the case of Leonard Barrott v. Perry Linney, involving the NW. Sec. 22, T. 2 S., R. 5 E., Bozeman, Mont., on appeal from your decision of July 5, 1882, awarding the land to Linney. The record shows that said tract had been covered by the desertland entry No. 3 of one Russell, and that Linney went upon it while so reserved and placed there a few timbers loosely outlining a house; he did not establish his residence on the land, but shortly afterward went to Rocky Cañon, built a house, moved his family into it, and engaged in cutting and selling timber. The desert-land entry was cancelled at the local office on November 17, 1881, and on November 23, 1881, Barrott made homestead entry No. 313 for said tract. On November 28, 1881, Linney, who had never been in possession of the land, and had performed no act of settlement other than that above. mentioned, made application to enter it as a homestead, and his appliIcation was rejected by the local officers because of the entry already of record. You reversed their action, directed the cancellation of Barrott's entry, and sustained Linney's claim of a preference right under section 3 of the act of May 14, 1880.

If Linney had any such right, he must have acquired it in the character of a settler, "who has settled upon the public lands of the United States," as the act referred to provides; but, being covered by a desert-land entry at the time he placed the timbers upon it, the tract was not public land. As this was the only act of settlement performed by him, it follows that he was not a settler upon the public lands within the meaning of the section cited, and therefore that he had no preference right of entry. The "acts of settlement on the land before the cancellation of the prior entries were without authority of law; he was without its protection, had no legal status, and gained no rights thereby." (Porter v. Johnson, 3 Copp's L. O., 37.)

Your decision, however, is based on the theory that "his settlement right took effect simultaneously with the Russell entry cancellation;" but from this I am compelled to dissent, for the reason that a naked act of settlement, not followed by residence or other satisfactory evidence of occupation, is not such a continuous claim to the land as that, after cancellation, it can have any legal effect. The said section extends to