emption filing of Mrs. Flippen should not have been allowed while the company's appeal from the action of the local office rejecting its selection was pending in your office undecided. (Rule of Practice 53, 4 L. D., 43; Stroud v. de Wolf, 4 L. D., 394; Bailey v. Townsend, 5 L. D., 176; Austin v. Thomas, 6 L. D., 330; Laffoon v. Artis, 9 L. D., 279; Northern Pacific R. R. Co. v. Halverson, 10 L. D., 15; Lehman v. Snow, 11 L. D., 539.

The lands within the indemnity limits having been restored, the right to file for said tract depends upon the validity of the selection of the company. If that is invalid for any reason, then Mrs. Flippen can be permitted to make pre-emption entry of the land. The company having an appeal pending involving its right to said tract, no action could be taken without special notice to it. Southern Pacific R. R. Co. v. Reed, 4 L. D., 256. Indeed, the proper practice is to suspend the filing and proof until the final disposition of the appeal of said company now pending before your office. Mrs. Flippen, however, may be allowed to intervene under the rules of practice.

The decision of your office is accordingly modified and the pre-emption claim of Mrs. Flippen will be suspended until final action upon the appeal of the company.

RAILROAD INDEMNITY SELECTION-PRE-EMPTION CLAIM.

HENSLEY . MISSOURI, KANSAS AND TEXAS RY. Co.

The right to take a tract of land as indemnity is determined by its status at the date of selection and not at date of withdrawal.

Land excepted from withdrawal by the existence of a pre-emption claim is not excluded thereby from subsequent selection, if at the date thereof, such claim has expired and is abandoned.

Secretary Noble to the Commissioner of the General Land Office, Janu

ary 5, 1891.

I have considered the case of W. F. Hensley v. Missouri, Kansas and Texas Railway Company, on appeal by the former from your decision of July 12, 1889, rejecting his application to make homestead entry for the S. of the SE. 4 of Sec. 10 and the N. of the NE. 4 of Sec. 15, T. 26 S., R. 14 E., Topeka, Kansas land district.

The statement of facts made in said decision is supported by the record and is not denied or criticised by the appellant. It is simply insisted on appeal that because the land was at the date of the order of withdrawal covered by the filing of a qualified pre-emptor who had made actual settlement thereon, it was excepted from the operation of the grant and the withdrawal therefor.

It is clear that the land covered by such settlement was excepted from the operation of the withdrawal and that it was until selection by the company subject to appropriation as public land. The right to

take a tract of land as indemnity is determined by its status at the date of selection and not at date of withdrawal.

Missouri, Kansas and Texas Ry. Co. v. Beal (10 L. D., 504).

The claims which served to work the exception from the withdrawal had, however, expired and, as shown by the evidence been abandoned long prior to the application of the company to select the tracts as indemnity, and were not therefore sufficient to prevent such selection thereof by the company. Chicago, Milwaukee, and St. Paul Ry. Co. v. Amundson (8 L. D., 291); Allers v. Northern Pacific R. R. Co. (9 L. D., 452).

The decision appealed from is affirmed.

PRE-EMPTION-ALIENATION AFTER ENTRY.

UNITED STATES . SEARLS.

One who settles on land in good faith, and subsequently complies with the requirements of law, intending to make the land his home, is not disqualified as a preemptor by the fact that through a change of circumstances he had formed an intention to sell prior to the submission of final proof.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 6, 1891.

On May 5, 1882, Alvin T. Searls filed his declaratory statement for the S. SW. Sec. 7, and N. NW. Sec. 18, T. 97 N., R. 61 W., Yankton, Dakota.

He offered his final proof before the register and receiver on April 26, 1883, and the same was accepted, and final certificates duly issued. The improvements consisting of a house, stable, and five acres broken, were valued at $150. No crops (except hay) were raised, and

the residence was shown to be continuous.

Special Agent Thomas M. James examined the premises October 25, and 26, 1885, and reported the land in possession of Isaac W. Seaman, to whom it was conveyed the day after said entry; that the land was enclosed by Seaman for a stock-range in the spring of 1884; that the improvements consisted of a sod shanty twelve by fourteen feet, built in 1881 by said Seaman, less than three acres broken-the breaking being done for a fire guard for protection of Seaman's stock-range; no crops; no residence ever established; was employed by Seaman in Tyndall, Dakota, and lived twenty-five miles away from the land; had agreement to convey the land after proof should be made to Seaman, receiving fifty dollars for his right. The evidence on which he made his report was the declarations of one John Musser, of Denmark, Iowa; that he was present and heard the contract between claimant and Sea; man; that claimant had no furniture, and that the fraud was wilful. The entry was accordingly held for cancellation, March 11, 1886, and

on the application of said Seaman a hearing was ordered January 12, 1887, and the same was had and concluded July 13, 1888, the government being represented by Special Agent Braly and the claimant and transferee appearing in person.

The register and receiver, while finding that the charges of the special agent were not fully sustained, yet recommended the cancellation of the entry, saying:

Although the improvements were meager, such fact in itself does not indicate an attempt to obtain title to land without making the same his actual home, we are constrained to believe however that his action in selling the land immediately after proof, coupled with his own statement that he had prior to proof concluded to sell the tract and return to Iowa, and the further facs that he was in the employment of the subsequent transferee or grantee during a great part of the time of his alleged residence thereon, fails to establish the entryman's good faith in the premises, and that his entry is not of such a character as contemplated by law. While the inception of the entry may have been in good faith, the claimant's admission that when he learned that his brother would not leave Iowa and remove to Dakota, he determined to sell as soon as proof was made, and the fact he did sell the day after proof was made leaves no doubt that the consummation of the entry was speculative and not for the purpose of procuring a home.

In your decision you find that the original filing was in Seaman's interest, and because the claimant "was in search of a purchaser before he made final proof," he thereby became disqualified for making such final proof.

I have carefully reviewed the testimony. The evidence taken at the hearing fails to sustain the agent's charges in several important particulars. The house was a stone house, built two or three years before the filing was made by one Coats, it was never occupied until claimant moved into it. When he made his filing the house was badly out of repair, the stones had fallen from the sides and corners, the roof needed fixing and the floor leveled. He made the necessary repairs, discovered a spring of water and fixed it for use, and built a stable. The improvements are shown to be fully worth $150-the amount estimated in final proof. His residence was practically continuous; he had the necessary furniture in his house, and the evidence fails to show that he agreed to convey the land before he made final proof. In all this the report of the special agent was not sustained. Claimant swears he made the entry in his own interest, and there is no evidence whatever to sustain your finding that the original filing was in Seaman's interest. It can only be inferred from the fact that Seaman, who had known him from boyhood, showed him the land, that claimant was employed by Seaman for about half the time from the filing to date of final proof, and that the land was deeded to Seaman the day after proof was made.

Claimant was a poor man, and was compelled to work for others for his support and for means to improve his land; and his temporary absence for such purposes did not break the continuity of his residence. He swears he made the filing in his own interest, and had no agreement

that the title he might acquire should inure to the benefit of any one else; that he resided on the land continuously and had no other home. He further says:

I filed on my land in the spring of 1882, and then went back to Iowa, thinking my brother would come, and I was to bring my sister so I could get ready to take up my residence; my brother changed his mind and would not come, and I brought ont my sister and she got homesick, and I got tired of the country and concluded to sell and go back to Iowa. This was in the spring of 1883. I made the agreement with Seaman the next day after the entry. I had been talking to different parties about selling my place before I had proved up. I had talked to Mr. Seaman about selling him the place before I made my proof. When I made my proof I intended to make the land my home, if I could not sell it. I talked to Mr. Seaman about selling my land before final proof and the day following I made the trade, but not in terms we had talked about. I know I had the land for sale when I proved up.

Sec. 2262 of the Revised Statutes, among other things, provides as follows:

Before any person

is allowed to enter lands he shall make oath

..that he has not settled upon and improved such lands to sell the same on speculation, but in good faith to appropriate it to his own exclusive use, and that he has not directly or indirectly made any agreement or contract in any way or manner with any person whatever by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself.

There is no evidence that claimant settled upon this land for speculative purposes. He swears to the contrary. Nor is there any evidence that he made any contract to sell the land before he made final proof; he swears to the contrary. But he had talked about selling the land before he made final proof to Mr. Seaman and "different persous,” and he swears that when he made his proof he intended to reside on the land, "if he could not sell it."

The incident of his going after his brother, and of his bringing his sister from Iowa to Dakota (after his filing) "so I could get ready to take up my residence," strongly indicates his good faith in filing on the land. The failure of his brother's coming and the homesickness of his sister "caused him in March 1883 to conclude to sell and go back to Iowa."

The sole inquiry therefore is, whether one can in good faith make final proof in a pre-emption claim, who before and at the time be submits such proof "has concluded to sell" if he can find a purchaser, but who intends to make the land his home" if he can not sell.”

There is nothing in the record which impeaches the entryman's statements made in his final affidavit, as required by Sec. 2262 of the Revised Statutes.

In the case of Edward C. Ballew (8 L. D., 508), I find this statement: "But a change of circumstances after settlement and before proof may be such as to render the making of final proof at a particular time in order to go away from the land entirely compatible with good faith." The change of the circumstances which induced the intention to sell

took place just before the proof was made, and could not be foreseen at date of filing and during the time of residence and improvements. He did not sell or agree to sell before he made proof. After he made proof he had a legal right to sell, and the fact that he had formed the intention of selling before proof is not inconsistent with good faith or contrary to the spirit of the law. Had he gone on the land with the intention of discontinuing his residence and selling the same when proof should be made, although his subsequent residence and improvements might fulfill the letter of the law, his good faith would be wanting and the entry should be canceled. (Sydney F. Thompson, 8 L. D., 285). But he did not do this; on the contrary, his good faith at date of filing and up to the time of the final proof is manifest.

For the reasons above given, I reverse your decision and direct that the final proof be received and patent issued.

CERTIFICATE OF DEPOSIT-ACT OF MARCH 3, 1879.

MARTIN KIRBY.

A certificate issued on a deposit made to secure a survey, is assignable under the provisions of the act of March 3, 1879, whether issued before or after the passage of said act.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 6, 1891.

I have considered the appeal of Martin Kirby from your office decision dated October 22, 1889, refusing to accept a certificate of deposit issued October 12, 1872, as part payment for lot 20, Sec. 5, SE of SE Sec 6, and N of NE Sec. 7, T. 5 S., R. 20 E., Stockton, California. The record shows that the certificate in question was a triplicate certificate of deposit, No. 243, dated October 12, 1871, for $100, deposited with the United States Assistant Treasurer at San Francisco, California, by J. P. Thompson. It was deposited by Thompson on account of field and office work for the survey of township No. 5, the same in which this land is located, and was tendered by Martin Kirby September 30, 1889; Kirby is a settler under the pre-emption law in that township. The local officers refused to accept the certificate, but, in accordance with paragraph 21, page 59, of the general circular from the Land Office, issued January 1, 1889, enclosed the certificate to your office for examination. Said paragraph reads as follows:

Certificates issued prior to March 3, 1879, can be used only by the settlers in the purchase of lands in the township, the surveying of which was paid for out of such deposits; but they must be transmitted to this office for examination as to excess repayments, if any, before they can be accepted by the receiver, who will be governed by the certificates indorsed on or attached to them by this office.