allowed credit for settlement or land withdrawn for railroad purposes prior to restoration thereof to market; nor, under the act, can a claimant be credited for any time he lived upon the land while it was covered by an uncanceled prior entry.

Copp's L. O., vol. 8, p. 92.

§ 85. Before the act of May 14, 1880, no homestead right could be conveyed, nor ever under that act is the preference right of entry by one who secures a cancellation of a prior entry assignable.

Copp's L. O., Oct. 1882, p. 131.

The election of a homestead claimant to take less land than the maximum to which he is entitled is a waiver of his claim to a larger quantity.

Copp's L. O., Dec. 1882.

A mistake which arises from an attorney's want of knowledge is no excuse for non-compliance with the law.

Copp's L. O., Sept. 1882, p. 115.

§ 86. Transmutation.-Pre-emptors who would transmute to homesteads must give notice to subsequent homestead claimants, who will be allowed to contest the transmutation; and this right of transmutation is a personal right, which does not descend to heirs.

Copp's L. O., Oct. 1882, p. 148; Copp's L. L., 1882, p. 619.

A soldier's right of entry can not be assigned. To acquire public land by homestead entry, a soldier must live upon and cultivate the land at least one year.

Letter of Commissioner McFarland, Copp's L. O., Jan. 1883, p. 195. § 87. A claimant of land who is lawfully confined in the penitentiary for life is civilly dead, but if he had previously to his conviction resided upon the land the required length of time, a trustee appointed by a court, and in some cases a wife, may prove up and receive the patent.

Copp's L. L., vol. 1, p. 425.

§ 88. When the secretary of the interior has officially decided any matter or case, and goes out of office, leaving the decision on record, his successor can not lawfully overturn it, unless upon the production of such new evidence as would be sufficient in a court of chancery to sustain a bill of review or to grant a new trial.

Opinion of Attorney General Black, 9 Opinions, 101.

§ 89. Commutation.-Homestead entries can be commuted to cash only after actual inhabitancy of the land by the homestead party, and his improvement and cultivation of it for a

period of not less than six months. A person who commutes a homestead entry can not move from the tract and settle on other public land in the same state or territory. A person commuting a homestead entry when he has not actually resided upon the land and improved and cultivated as required by law, forfeits all rights to the land and the purchase money paid, and in addition thereto renders himself liable to criminal prosecution. Circular instructions of March 20, 1883.

In commutation cases, proof of settlement and cultivation for the prescribed period is to be made in the same manner as in pre-emption cases; that is to say, publication of notice to make proof is required precisely as in pre-emption and homestead cases, and the proof is to be taken in the same manner as in these cases. The applicant is required to show that he or she is either the head of a family, a single person over the age of twenty-one years, or a widow, and a citizen of the United States, that he or she has made a settlement in person upon the tract designated, that he or she has inhabited and improved the same for a period of six months and erected a dwelling thereon, and must make oath that he or she has not previously exercised the pre-emption right, and is not the owner of 320 acres of land; that he or she has not settled upon the land to sell the same on speculation, but in good faith to appropriate to his or her own exclusive use; that he or she has not made any contract or agreement, directly or indirectly, in any way or manner, with any person whomsoever, by which the title he or she may acquire from the United States shall inure, in whole or in part, to the benefits of any person except himself or herself.

R. S. 2262.

§ 90. In cases where pre-emption filings have been changed to homestead entries, and the parties come to make final proof, claiming credits for the period under pre-emption settlement, a full affidavit is required, stating qualification as pre-emptors, covering the period from the date of pre-emption to the date of change to homestead entry; and in cases of final proof, an additional affidavit will be required, as of homestead claimants, and the testimony of the claimant and his witnesses, as in homestead cases, covering the entire period from the date of settlement under the pre-emption laws.

Copp's L. L., 1882, p. 385; Circular of July 17, 1878; 5 Copp's L. O., p. 94.

A settler does not lose his rights under his pre-emption claim by a commutation to a homestead entry, and he may therefore,

if the proof is sufficient, include 160 acres in such homestead entry.

Southern Pacific R. R. Co. v. Wiggins et al., Copp's L. L., vol. 2, p. 937.

§ 91. The land department recognizes the validity of a preemption claim, based upon settlement and residence, on unoffered land, without the filing of a declaratory statement, in the absence of a valid adverse claim by an opposing settler; in other words, the land so occupied does not pass to the railroad company.

Leavenworth, L. & G. R. R. Co. v. The United States, 2 Otto, 733. But in the absence of a claim of record, and of all proof of such settlement and residence, it will be held that the land inured to the grant.

Secretary Chandler's Letter, Copp's L. L., vol. 2, p. 937.

§ 92. Supreme court scrip and military bounty land warrants. may be used in commutation of homesteads. As to the mode of location, see title, Land Warrants and Private Scrip.

§ 93. Act of June 15, 1880.-Cash entry may be made under section 2, act of June 15, 1880, although the homestead entry was void at its inception.

Case of George W. Maughn et al., Copp's L. O., June, 1882, p. 57.

Whenever an application is made to purchase under the act of June 15, 1880, it must be done under an affidavit of the applicant, giving a full and detailed statement of all the facts upon which he bases his claim to purchase; such sworn statement should be corroborated by the affidavits of credible witnesses, and then, if any doubt exists in the minds of the registers and receivers as to any of the questions involved, all the papers should be forwarded to the general land office, and no entry allowed until instructions are received from the commissioner. The party applying under this act must be twenty-one years of age, a citizen, or one who has made application to become such, and must be in other respects entitled to make the entry.

Copp's L. L., 1882, p. 496.

In cases of transfer, the instrument itself must be filed, together with the best evidence attainable of the bona fide character of the transfer, including the affidavit of the party who seeks to purchase. No entry should be allowed by the local officers which interferes with an entry of the land under the homestead laws, made subsequently to the original entry, on which application is made under section two of this act. The act contemplates only those cases in which the United States

and the applicant to purchase are alone interested at the time of entry.

Copp's L. L., 1882, p. 496; Circular Instructions, July 17, 1880; Copp's
L. L., 1882, p. 497.

A party purchasing of a homesteader the improvements, right of entry, and possession of the same, and where the transfer is made by bona fide instrument in writing, can pay the government price for the same, under the act of June 15, 1880, and thus secure the title. But in the presence of an adverse claim, the cancellation of a homestead entry terminates its existence, and the act of June 15th does not apply.

Copp's, Aug. 1882, p. 95.

The act of May 14, 1880, grants a contingent preference right to the person who successfully contests a homestead entry, paying fees, etc. And it is held, that a person who has successfully contested a homestead entry under this act acquired such an adverse standing as prevents the entryman from paying for the land under the act of June 15, 1880.

Copp's L. L., 1882, p. 501.

But in a subsequent decision by Secretary Kirkwood, March 12, 1881, it was decided that a homestead claimant, whose entry is being contested on the ground of abandonment, under the act of May 14, 1880, may, under the act of June 15, 1880, purchase the tract entered, and thus prevent any right of the contestant attaching.

Copp's L. L., 1882, p. 503.

The right of a purchaser under this act is not personal, but descends to the heirs, and where entries are attempted to be made by transfers, under the act of June 15, 1880, there must be satisfactory proof that the attempted transfer was made prior to June 15, 1880. Final homestead proof not being required in these cases, no advertisement or notice of intention to make final proof is necessary, and no final homestead fees are to be paid or collected. No entry will be allowed under the second section when the original homestead entry was not a valid entry; nor when an entry under the homestead laws shall have been made on the same land subsequently to the original entry. Copp's L. L., 1882, pp. 259, 260; Circular of October 1, 1880.

§ 94. Relinquishment.—In order to give effect to a relinquishment as evidence in a contested case, so as to inure to the benefit of the contestant, under the act of May 14, 1880, it must have been made before the closing of the testimony before the register and receiver on the allegation of abandonment.

Copp's L. L., 1882, p. 515.

§ 95. Two Modes of Obtaining Patent.-There are two modes of obtaining a patent under homestead laws after entry: one requiring a residence upon and cultivation of the land for five years; and the other, a residence upon and cultivation of the land for six months, and payment for the land at the government price, $1.25 per acre. The latter course is known under the general name of commutation. The five-years limitation will be first considered. At the expiration of five years, or within two years thereafter, the person who has made entry, or if he be dead his widow, or, in case of her death, his heirs or devisee, or in case of a widow making such entry, her, heirs or devisee in case of her death, must prove by two credible witnesses that he, she, or they have resided upon or cultivated the same for a period of five years immediately succeeding the time of filing the first affidavit and entry, and must make an additional affidavit that no part of such land has been alienated except as provided in section 2288, revised statutes, and that he, she, or they will bear true allegiance to the government of the United States. After this affidavit and proof is made, then he, she, or they, if at that time citizens of the United States, are entitled to a patent as in other cases provided by law.

R. S. 2292.

96. Notice of Final Proof.-A settler desiring to make final proof must file with the register of the proper land office