HOMESTEAD-ADJOINING FARM ENTRY.

THOMAS S. WETHERBEE.

The owner of an undivided portion (less than 160 acres) of a tract of land upon which he resides, if qualified, may make an adjoining farm homestead entry under section 2289 of the Revised Statutes.

Commissioner McFarland to Thomas S. Wetherbee, Waldo, Oregon, September 27, 1881.

I am in receipt of your letter of the Sth ultimo, in which you state that you are the owner of the undivided one half of "an eighty-acre tract," and you ask if you will be allowed to make an adjoining farm entry, embracing an area of 120 acres.

In reply you are advised that if you are legally qualified, the fact that your interest in the tract named is undivided would be no bar to your making an adjoining farm entry for 120 acres.

For particulars relative to the requirements of the statute governing this class of entries, you are referred to the district officers for the district in which the land described is situated.

HOMESTEAD ENTRY-MARRIED WOMAN.

EDA M. CARNOCHAN.

A married woman who, prior to marriage, made a homestead entry within railroad limits of land enhanced to the double minimum price of $2.50 per acre, and was restricted by then existing laws to entry of eighty acres, is entitled to make an additional entry under the act of March 3, 1879.

Commissioner McFarland to register and receiver, Visalia, California, September 29, 1881.

I am in receipt of your letter of the 25th ultimo, transmitting the application of Eda M. Carnochan to enter the S. of SE. of Sec. 30, T. 20 S., R. 25 E., under the provisions of the act of March 3, 1879, as additional to homestead entry No. 2390, for the N. of SE. † of said Sec. 30. You refused to allow the entry for the reason that she is now a married woman, and therefore is disqualified from making a homestead entry, and submit the case to this office for instructions.

The records of this office show that on May 24, 1877, Eda M. Cady made homestead entry No. 2390 for N. of SE. 4, Sec. 30, T. 20 S., R. 25 E., and on September 13, 1879, commuted the same to cash entry No. 3230, in the name of Eda M. Carnochan, her present legal name. The land thus entered was rated at $2.50 per acre, and she was restricted by existing laws to an entry of eighty acres.

The act of March 3, 1879, provides that "any person who has, under existing laws, taken a homestead on any even section within the limits

of any railroad or military road land-grant, and who, by existing laws shall have been restricted to eighty acres, may enter under the homestead laws an additional eighty acres of land adjoining the land embraced in his original entry, if such land be subject to entry."

Mrs. Carnochan, nee Cady, was qualified to make the original homestead entry, and was restricted to eighty acres. The act of March 3, 1879, is remedial in its provisions, and in order to place those who had already made entries upon an equal footing with those who might thereafter enter double minimum land granted them the privilege of making additional entries. The fact of Miss Cady having married does not, in my opinion, disqualify her from availing herself of the provisions of said

act.

The additional homestead papers are herewith returned, and you will allow Mrs. Carnochan to perfect her entry, after which you will give the papers the current number and transmit them to this office with your regular returns.

HOMESTEAD-COMMUTATION-FINAL AFFIDAV IT.
JOHN J. MCKAY.

Where a homestead claimant failed to make settlement within six months after entry on the tract entered he will not oa account of such failure be prevented from making commutation entry upon proof of settlement and cultivation such as would entitle him to make entry upon the pre-emption law.

Commissioner McFarland to register and receiver, Benson, Minnesota, December 31, 1881.

July 2, 1880, John J. McKay, of Appleton, Swift County, Minnesota, made homestead entry No. 10577, for the NW. Sec. 26, T. 121, R. 42. October 6, 1881, he offered to commute the entry to cash under section 2301, Revised Statutes. His proof showed that he did not establish a residence upon the land within six months from date of entry, the date of performing that act being April 7, 1881. Because of this failure to establish residence on the land within the period prescribed by homestead law you declined to accept the purchase money and issue the usual receipt and certificate, and transmitted the proof to this office for consideration with your letter of November 7, 1881.

Upon examination of the papers it was determined by this office to submit the case to the board of equitable adjudication, and by letters C of November 28 and December 13, 1881, W. N. Severance, of this city, and the Hon. H. B. Strait were informed that such action had been taken.

I have reconsidered the matter, however, and am now of opinion that such submission is not necessary, inasmuch as section 2301 Revised Statutes provides that

Nothing in this chapter shall be so construed as to prevent any person who has availed himself of the benefits of section 2289, from paying

the minimum price for the quantity of land so entered at any time before the expiration of the five years, and obtaining a patent therefor from the government, as in other cases directed by law, on making proof of settlement and cultivation as provided by law, granting preemption rights.

The failure to establish residence upon the land within six months from date of homestead entry does not, therefore, in my opinion, create a defect in this entry. It is only required in commutation cases that the party shall make proof of settlement and cultivation as required by pre-emption law, and if upon examination of his proof it be found that such settlement and cultivation have been made as would entitle him to make payment for the land under pre-emption law and receive patent, it is immaterial whether he shall have complied with the homestead law in respect to time of making settlement upon the land, provided no adverse claim for the tract appears of record, as it is expressly provided that "nothing in this chapter shall be so construed as to prevent " him from making the payment and receiving patent.

Upon a re-examination of the case I find that the final affidavit is not executed in proper form, the ordinary form (No. 4070) for homestead proof having been used instead of that prescribed for commutation proof (No. 4069).

The party is therefore required to execute a new affidavit upon the proper blank, and upon receipt of the same by you with the amount of purchase money you will issue the usual receipt and certificate in the case and transmit the same to this office with your regular returns for the month in which issued.

Inform the party as to the contents and requirements of this letter.

ACT OF JUNE 15, 1880-REPAYMENT.

W. W. DEWHURST.

A party having purchased the land embraced in his homestead entry under the act of June 15, 1880, is not entitled to relinquish the same, or any portion thereof, for the sole purpose of obtaining repayment of the purchase money, nor is he entitled to such repayment for the reason that the character of the land does not suit him.

Commissioner McFarland to register and receiver, Gainesville, Florida, January 9, 1882.

Referring to your letter of the 22d of November last, inclosing petition of W. W. Dewhurst to amend his homestead entry, No. 4057, for lot 1, and E. of NE. and W. of NE. 4, Sec. 32, T. 20 S., R. 36 E., Florida, purchased by him under the act of June 15, 1880, I have to state that it appears by the records in this office that said entry was made by Dewhurst September 22, 1876, containing 162.84 acres; that

on the 5th of April last he made application and purchased the land. embraced by said homestead entry for cash, No. 1480, Gainesville series. It now appears by the petition presented by Dewhurst that he desires to relinquish the SE. of NW. 1, or S. of lot 1, embraced in his homestead entry, and have refunded to him the amount of purchasemoney paid thereon. Furthermore he desires to have the area of the tracts retained by him computed according to the actual topography of the land as shown by the recent coast survey, which represents that quite a portion of the NE. of NW. or N. of lot 2, and SW. † of NE. is covered by navigable water, and that the purchase money for that portion actually covered by water not shown by the official plat of survey also be refunded.

On examination of the official plat of survey in this office I find that there is quite a difference between said plat and the map of coast survey filed by Mr. Dewhurst; but in view of the fact that no evidence of fraud in the original survey has been presented, nor any evidence that said survey did not correctly represent the character of the lands at the date thereof, to wit, March 1, 1848, and the lands having been disposed of regularly under such survey this office has no authority of law to enter upon the resurvey or direct a resurvey of the lands in question.

In relation to the request of Mr. Dewhurst to be allowed to relinquish a portion of his entry as above indicated, and have the purchase money refunded thereon, I have to state that he having decided to take the benefit of said act of June 15, 1880, and having paid the gov ernment price, as stipulated by the provisions of said act, there is no authority in law whereby this office can refund the purchase money paid on any portion of the land.

HOMESTEAD ENTRY-DEVISEE.

SARAH LEONARD.

A homesteader cannot by will defeat the law, which provides that in case of the death of both father and mother, leaving minor children, the homestead right shall inure to their benefit. In this case a feme sole devised her homestead to her son and died. Held that in such cases, in order that the devisee may obtain title it must appear satisfactorily that no infant children survived.

Commissioner McFarland to Hon. W. D. Washburn, House of Representatires, January 13, 1882.

I am in receipt of your letter of the 9th instant, inclosing one from. John Carmody, esq., dated Princeton, Minn., January 4, 1882, respecting the delay in issuance of patent in Taylor's Falls, Minn., homestead entry No. 1831, final certificate No. 1369, for N. of SE. and SE. † of SE. 1, 14, 35 N., 27 W. 4th P. M.

This entry was made July 19, 1871, by Sarah Leonard, who, on the 25th day of May, 1874, executed a will devising all her right, title, and interest in the land described to her son, John Carmody. The will was probated and declared valid by the probate court of Sherburne County, Minnesota, October 5, 1878, and on the 7th of that month the said John Carmody was duly appointed administrator of the estate of Sarah Leonard, deceased.

November 26, 1878, John Carmody, as devisee, made final proof as prescribed by section 2291 of the Revised Statutes, and final certificate and receipt were issued by the register and receiver on that day in his

name.

Section 2292, Revised Statutes provides that "in the case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure to the benefit of such infant child or children," and it is held by this office that a homestead party cannot will away the right of infant children thus guaranteed by express statutory provision.

The final proof in this case does not show whether or not infant children survived the homestead party, and in the adjudication of such cases it is an official requirement that the proof shall be explicit upon this point, that the object of the law may be fully secured and that the orphans may be protected in their legal rights.

The issuance of patent in the entry described has therefore been deferred until the question pertaining to the survival of infant children shall be satisfactorily determined. Upon the receipt of testimony upon this point, properly transmitted through the district land office, the case will receive due consideration and such action will be taken in the matter as may be warranted by the facts.

PRACTICE-SECOND CONTEST-PREFERENCE RIGHT OF ENTRY.

BENNETT v. COLLINS.

Where a second contest against a homestead entry was initiated before the determination of a prior contest, and the entry in question was canceled as a result of the first contest, the second contestant has no preference right of entry should the first contestant fail to make entry. The preference right cannot be transferred or assigned.

Commissioner McFarland to register and receiver, Grand Forks, Dakota, January 13, 1882.

I am in receipt of your letter of the 22d November last, transmitting testimony and proceedings in the case of Richard Bennett e. Lizzie Collins and Edmund Demers v. Lizzie Collins, both cases involving homestead entry No. 1337 SE. 4, 150, 51. Bennett filed his affidavit of contest on the 26th of May, and Demers on the same day, but at a later hour. The case of Bennett is therefore entitled to be first considered.