ASSUMPTION- ENTRY OF Record-SUBSTITUTION BY LOCAL OFFICERS NOT ALLOWED.

HOLTERMAN v. Carter.

In the absence of papers required to initiate a contest, one cannot be assumed to tho detriment of a party who has complied with the law.

When an application has been accepted and an entry becomes of record, the local officers cannot substitute another party. If an entry is inadvertently made it can be vacated only by proper proceedings upon due notice under the established practice.

Acting Secretary Joslyn to Commissioner McFarland, July 31, 1883.

SIR: I have considered the case of Henry Holterman v. Sandy Carter, involving homestead entry No. 12,285, made by Carter January 13, 1881, covering the E. of NE. of Sec. 29, T. 7 N., R. 17 W., situated in the Little Rock district, Arkansas, on appeal by Holterman from your decision of June 29, 1882, affirming that of the local officers, awarding the tract to Carter.

The evidence shows that one Solomon Lents relinquished his entry of the tract in question January 13, 1881; subsequently, on the same day, entry was made thereon by Holterman.

The receiver in a letter states that he issued receipt No. 12,285, January 13, 1881, to Holterman, the register having certified that the tract was vacant. On January 25, 1881, the register informed him that Carter had filed an affidavit of contest January 8, 1881, alleging abandonment of the land by Leuts, whereupon the receiver erased the entry of Holterman from his books, substituted that of Carter, and issued a receipt to the latter bearing the same number and date as that given to the former.

There are no papers with the record to show that a contest was ini tiated as required by Rules 3, 4, 7 of the Rules of Practice.

Section 2 of the act of May 14, 1880, provides that where any person has contested and procured the cancellation of a homestead entry he shall have the preference right of entry.

In the absence of the papers required to institute proceedings, this Department cannot assume that a contest has been initiated to the detri ment of one who has complied with the requirements of the law; consequently Carter has no preference right to the entry.

The evidence shows that Holterman purchased the improvements on the land from Lents November 12, 1880; the latter executed a relinquishment of his entry November 15, 1880; Holterman took up his residence on the land December 27, 1880, cultivated and improved it, and made entry as soon as Lents filed the relinquishment. All the facts tend to show that Holterman procured the cancellation of the entry in good faith, and complied with the requirements of the law prior to the application of Carter to make entry.

When the application of Holterman had been accepted and he had re

ceived his duplicate, his entry became of record, and the register and receiver were not competent to substitute Carter in his place.

If the entry had been made inadvertently it could be vacated only by proper proceedings upon due notice, and regularly carried to decision under the established practice.

Your decision is accordingly reversed. The entry of Carter will be canceled, and Holterman will be permitted to enter the tract, with an indorsement of his right to have the same take effect as of the date of his original application.

REVIEW OF THE LAW AND PRACTICE GOVERNING HOMESTEAD CONTESTS.

HOUSTON v. Coyle.

Since the act of May 14, 1880, the rules of practice have required, in order to secure an assurance of good faith, that a contest for abandonment of a homestead entry must be initiated by the affidavits of the contestant and one or more corroborating witnesses. In this case there was no corroborating affidavit, but all the other proceedings were regular.

Held, that under Sec. 2297, Rev. Stat., jurisdiction vests in the local office by the issue of "due notice to the settler," and not by virtue of the affidavit of contest; that the rule of practice must not be permitted to defeat the operation of the law, which provides that the land shall revert to the Government on proof of abandonment; that, when an information has been filed by the contestant, due notice to the settler has issued, and the parties are present for the hearing, the local office has full jurisdiction of the inquiry; and that, generally, any question involving the sufficiency of the information, on which the local office elected to proceed, disappears from the moment that notice is issued to the settler.

Secretary Teller to Commissioner McFarland, September 26, 1883.

SIR: I have considered the case of S. D. Houston, jr., v. Elliott Coyle, involving the homestead entry of Coyle for the SW. of the SE. of Sec. 3, and the W. of the NE. and the SE. † of the NE. 4 of Sec. 10, T. 9 S., R. 1 E., Concordia, Kans., on plaintiff's appeal from your decision of October 12, 1882, dismissing the contest.

From the record transmitted with this case, the following facts appear:

April 10, 1879, Coyle made his homestead entry for the land above described. December 14, 1881, J. W. Dawson initiated a contest, alleging abandonment, and the local office fixed the day for a hearing on February 7, 1882.

December 29, 1881, Henry Thompson filed in the local office a notice of his intention to interplead and asked to be made a party plaintiff in the contest initiated by Dawson; and the request appears to have been allowed and notice issued accordingly.

On the day fixed for the hearing of Dawson's contest, Thompson appeared and filed an affidavit, alleging that Coyle, June 25, 1880, sold

and assigned to him all his (Coyle's) interest in said homestead, and delivered possession of the same to him, and that the affidavit for contest filed by Dawson "was void and not in accordance with law," for which reasons Thompson asked to be made a party plaintiff. The local office held that the only question to be determined was that raised by Dawson's affidavit for contest, and on the evidence adduced by him held the homestead entry of Coyle for cancellation.

During the proceedings before the local office in this contest, Houston & Son, of Concordia, Kans., appeared for the defendant, Coyle, and also for Thompson in his application to be made party plaintiff, and from the decision of the local office both Coyle and Thompson appealed, the above-named attorneys prosecuting the appeal for both parties.

July 5, 1882, you dismissed Dawson's contest, for the reason that no corroborating affidavit accompanied his affidavit for contest, as provided in Rule 4 of the Rules of Practice, as prescribed by your office, and on review, July 31, 1882, you held that Dawson's contest was a bar to the initiation of a contest by Thompson until a final disposition of the former was made. No appeal was taken from your decision of July 5, 1882; and October 9, 1882, you advised the local office that the case

was closed.

From an affidavit filed by Houston & Son, February 7, 1882, on behalf of Coyle, and sworn to by S. D. Houston, jr., it appears that Houstan, jr., is a member of the firm Houston & Son. July 12, 1882, the said S. D. Houston, jr., filed an affidavit in the local office corroborated by S. D. Houston, sr., for the purpose of initiating a contest against Coyle's homestead entry for the land before described, alleging that Coyle had abandoned the same.

August 5, 1882, the local office, following your decision of July 31, 1882, dismissed Houston's application for a contest; from which decision he appealed August 7, 1882, and the firm of Houston & Son acknowledged service of the notice of appeal for Coyle as his attorneys. October 12, 1882, you affirmed a decision of the local office dismissing Houston's contest.

October 14, 1882, at 9.30 a. m., Dawson filed an affidavit for a second contest against Coyle, alleging abandonment, but the local office rejected his application for a contest, for the reason that Houston's appeal was then pending; from which decision Dawson appealed.

October 14, 1882, at 1.45 p. m., Thompson filed an affidavit for contest against Coyle, alleging abandonment, to which was attached the affidavit of S. D. Houston, jr., as a corroborating witness. The local office refused to allow the contest, for the same reason as assigned in Dawson's second application; from which decision Thompson appealed.

Although no action has been taken by your office on the appeals of Dawson and Thompson from the decisions of the local office rejecting their last applications to initiate a contest, yet in view of the multiplicity of suits instituted and pending, all involving mainly the right

to contest Coyle's entry, and the peculiar state of facts as disclosed by the record, I am of the opinion that this department should now make a final disposition of the entire controversy, the whole record being presented by the appeal.

Section 2297 of the Revised Statutes, following section 5 of the act of May 20, 1862, entitled "An act to secure homesteads to actual settlers on the public domain" (12 Stat. 392), provides

That if at any time after the filing of the affidavit as required in section twenty-two hundred and ninety, and before the expiration of the five years aforesaid, it shall be proven, after due notice to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit shall have actually changed his or her residence, or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the Government.

It will be observed that under the law as above quoted the question of abandonment is one to be settled as between the Government and the settler; and that in the event of such abandonment being proven, the sole party in interest thereafter is the Government, to whom the land embraced in the homestead entry reverts; and further, that the only prerequisite required by the law to confer jurisdiction upon the local office is "due notice to the settler."

In order to secure a regular system in the administration of the foregoing law, your office, December 14, 1865, issued a circular of instructions, in respect to all proceedings before local officers in cases of alleged abandoned homestead entries, defining the manner in which notice of the contest should be given to the settler, and providing that an affi davit setting forth the grounds of contest should be filed prior to the issuance of notice (2 Lester, 259). But in this instruction no corrob orating affidavit was required. It was sufficient that the claimant

alleged the facts in his own affidavit.

As the law did not provide for the payment of the expenses incident to these contests, your office, in the circular referred to above, directed that such expenses must be paid by the contestant. Now, under the law and practice as it thus stood, the contestaut acquired no right by appearing and furnishing the evidence necessary to warrant action on the part of the Government, or by the payment of the costs of the contest. The land simply reverted to the United States, and once more became public land, subject to entry by the first legal applicant. But after the ·lapse of fifteen years Congress, recognizing the practice of your office as established in the matter of requiring the contestant to pay the expenses of the contest, provided, May 14, 1880-

That 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 such cancellation, and shall be allowed thirty days from date of such notice to enter said lands. (21 Stat., 140.)

By Rule 4 of the Rules of Practice, as prescribed by your office, the affidavit for contest must be accompanid by the affidavits of one or more witnesses in support of the allegations made by the contestant.

From this brief review of the law and the practice governing contests of this nature it will be seen that the right to contest an abandoned homestead entry exists in no one, but that in consideration of being placed in possession of certain information and the payment of certain expenses the Government holds the land in reserve for thirty days, for the purpose of allowing the person who furnished such information and paid such expenses an opportunity to enter the land.

This is akin to the law, as it has from time to time existed, granting a moiety to the informer of the penalty imposed upon violators of the law in criminal cases, and is operative merely as an inducement to parties cognizant of the facts and desirous of securing the land to come forward and furnish the information upon which the proceedings can be based. As in criminal cases, this gives the informer no right to have the proceedings instituted; but upon the acceptance of the information, including the deposit for expenses and the institution of proceedings thereunder, his right accrues to make the proofs and secure. the reward appropriated to him by the law. The object of the contest is to clear the record of an abandoned entry and restore the land to the Government, and under the law, whenever a case of abandonment is proved, after due notice to the settler, the land ceases to be appropri ated under the homestead law, and becomes the property of the United States. To secure an assurance of good faith on the part of the contestant, a rule, requiring his allegations of abandonment to be corroborated by the affidavits of other persons prior to the issuance of the notice of contest, has been very properly prescribed by the Department; but such rule must not be permitted to defeat the operation of the law. The information having been furnished, the notice to the settler given, and the parties present for the hearing in pursuance of such notice, the local office has then full jurisdiction to pursue the inquiry, and render judgment in accordance with its findings. Any question involving the sufficiency of information on which the local office elected to proceed disappears from the moment that notice is issued to the settler. It is by notice to the homestead settler that jurisdiction is acquired, and not by virtue of any affidavits on which such citation was issued; and this Department will not here review the sufficiency of the information. Due notice of the issue having been given in the words of the statute, or in a manner to answer the requirements of the statute, and satisfactory proof of abandonment made, the homestead entry must be canceled.

Hence, in this case, after judgment on the merits by the district officers, it follows that you erred in your decision of July 5, 1882, dismissing Dawson's contest merely because of his failure to file corroborative affidavits in support of his affidavit for contest. You should have adjudged the case on its merits, as reported to you on the record.