upon and cultivate the tract until the latter part of July, 1883, when, owing to ill health, she went to visit a neighbor, while her children continued to reside upon and cultivate the land until November, 1883, when she removed to La Conner, (situate in the same county), in order the better to provide for herself and children; that in January, 1884, she learned that Gorten had taken forcible possession of her house upon the tract in question, which she had left locked, with part of her goods and chattels, and that thereupon, in February ensuing, she instituted an action in ejectment detinue against him, wherein judgment was rendered in her favor March 1 ensuing. Wherefore she applied for reinstatement of her husband's entry, but your office rejected her application upon the ground that said entry having been canceled, no right can inure to her by virtue whereof she can assert claim under the same.

Although I concur in such view, and approve your action rejecting her application, I cannot approve your further action allowing her to make entry in her own right "subject to any valid adverse claim," inasmuch as I think she should be permitted to make entry of the tract unconditionally, or subject to no adverse claim. Her allegations evidencing her good faith are uncontroverted, and should preclude any one else from initiating an adverse claim in the premises. It has been repeatedly and invariably held by this Department that no settlement right can attach to land covered by a homestead entry, and that a filing without previous settlement is a nullity. It has been shown that Gorten filed his declaratory statement February 29, 1884, the very day Lewis's entry was canceled, and that he alleged settlement January 12 preceding. It was not competent for him to settle as alleged (such settlement having been a trespass vi et armis), and hence his filing was a nullity. It is true that Mrs. Lewis has not made entry, but, having evidenced her entire good faith, I think her case falls within the reason of the rule established by the Department in the case of Murphy v. Taft (1 L. D., 113), and that such entry should be permitted thereunder.

ENTRY-FINAL PROOF; PAYMENT.

INSTRUCTIONS.

Final proof and payment must be made at the same time. Proofs presented without tender of payment must be rejected.

Commissioner McFarland to register and receiver, Fargo, Dakota, November 18, 1884.

It is reported by inspector Hobbs that at Fargo, "as in most of the Dakota offices," there are a large number of final proofs awaiting payment, and that at the date of his report (October 25, 1884) there were

one hundred and forty-five such proofs at your office. It is stated that these proofs are received from judges or clerks of courts, or notaries public, "with the understanding that some person who has agreed to furnish the money will come in and call them up and make payment," and that oftentimes there is a delay of several weeks (and sometimes months) before payment is made.

The practice referred to is irregular, and must be discontinued. There is no authority for receiving proofs in advance of action in allowing or rejecting an entry, and you have no authority to act upon entry applications until the party is prepared to consummate entry by making proof and payment. In other words, proof and payment must be made at the same time. Proofs presented without tender of payment must be rejected.

NEW MEXICO DONATION-SETTLEMENT.
FLORENTINO PADIA.

Where residence and cultivation were not begun by the donation (New Mexico) claimant on or before January 1, 1858, though other requirements of law were complied with, the claim is invalid. The case of Juan Rafael Garcia is affirmed.

Secretary Teller to Commissioner McFarland, November 18, 1884.

I have considered the donation claim of Florentino Padia, certificate No. 157, notification No. 272, under the act of July 22, 1854 (10 Stat., 308), involving the N. E. of S. W. 1, the W. of S. E. 4, and the S. E.

of S. E., of Sec. 6, T. 27 N., R. 34 E., Santa Fé, New Mexico, on appeal by Padia from your decision of September 12, 1883, holding said claim for cancellation.

The proofs show that Padia resided in New Mexico prior to the first day of January, 1853, and has so resided since then; that he is a citizen of the United States; that he settled upon said tracts March 1, 1875, and resided thereon continuously until the 14th day of August, 1880-the time of making his proof-and has made the necessary cultivation and improvement of the land.

You held the claim for cancellation because residence and cultivation were not begun on or before the first day of January, 1858. This holding is in accordance with the decision of this Department of November 23, 1882, in the parallel case of Juan Rafael Garcia (1 L. D., 287). The latter case was sent by your office to this Department for approval, and there was no appearance for Garcia. In the present case counsel has appeared for Padia and filed an elaborate and able argument in his be half. I have carefully considered such argument, and have again reviewed the grounds of my former decision, but am unable to arrive at any different conclusion.

I accordingly affirm your decision.

HOMESTEAD-ACT OF JUNE 15, 1880.

CHRISTIAN G. LARSEN.

Since the act of June 15, 1880, applies only to transfers made prior to its passage, the transferee's entry in this case, which was based upon a transfer made after its passage, was illegally allowed.

Since the transferor is not an applicant for purchase, and since the transferee, subsequently to allowance of his entry, made valuable and permanent improvements on the land, and sold various parcels of it, the case may go to the Board of Equitable Adjudication.

Secretary Teller to Commissioner McFarland, November 19, 1884.

I have considered the appeal of Christian G. Larsen from your decision of September 19, 1882, holding for cancellation his cash entry No. 2325, covering the SW. of Sec. 34, T. 18 S., R. 8 E., Salt Lake City district, Utah.

The record shows that one Forbush made homestead entry of said tract on April 23, 1880, and deeded it to Larsen on December 1, 1880. Larsen's cash entry was allowed under Section 2 of the Act of June 15, 1880. Your decision holds that it was improperly allowed, for the reason that said act applies only to transfers made prior to its passage. In this I agree with you, after a very full and careful consideration of the subject, and affirm this part of your decision.

But the decision goes further and holds the entry of Larsen for cancellation, sustains the validity of Forbush's entry, and affirms the latter's right of purchase under the act of June 15, 1880. The record shows that Forbush is not an applicant to purchase under said act; that after the conveyance, which appears to have been made in good faith by both parties, he left the country, so that his transferee cannot now communicate with him; that a valuable consideration was paid for the transfer, which cannot now be recovered back; that Larsen went on the land, and has made improvements of his own thereon of the value of several thousand dollars; and that he has sold various parcels of it to third persons, and this in good faith and relying upon the action of the local officers in allowing the entry, and upon the act of June 15, 1880, which all parties supposed authorized the said transfer and entry by the transferee. He avers that he has no redress, unless the government will protect him.

I think that this case is one which contains all the elements of an equitable claim against the United States, and that the equities are very strong. It is a rule, recognized in various ways by the courts, that the interests of a bona-fide claimant are not to be prejudiced by the mistakes of officials. Section 2457, Revised Statutes, authorizes equitable adjudication "where the law has been substantially complied with, and the error of informality arose from ignorance, accident, or mistake, which is satisfactorily explained." The existing rules of the Board of Equit able Adjudication do not include this case, for the reason that they were

made prior to the enactment of the law under consideration; but they frequently recognize the plea set up by Larsen, namely, that the entry was made bona fide and in ignorance of the law. So that, as he has obtained a transfer of the character contemplated by the law and paid the required purchase money, he has substantially complied with the law; and, though not qualified under the act of June 15, 1880, I think that his entry will be confirmed by the Board of Equitable Adjudication. Your decision is therefore modified, and you will please submit Larsen's entry to the Board.

HOMESTEAD-DESERTED WIFE.

MEESE v. MEESE.

A. made homestead entry in 1872, but abandoned his wife in 1877, and relinquished the land; he rejoined his family on the land, and procured B. to make homestead entry in June, 1877, and to hold the tract in trust for A.'s family; A. died in 1880, and B., who began to assert his sole ownership, resided with the widow (with her consent) until August, 1882, after which he forcibly maintained the residence: held that A.'s widow may make entry nunc pro tunc, subject, however, to confirmation by the Board of Equitable Adjudication.

Secretary Teller to Commissioner McFarland, November 19, 1884.

I have considered the claim of Annette Meese v. David Meese, involving the homestead entry made by the latter for the E. of N.E. of Sec. 2, T. 13, R. 8 E., Lincoln district, Nebraska, on appeal by Annette Meese from your decision of March 14th last, dismissing her contest.

The record in this case embraces several hundred pages of testimony, the most of which consists of irrelevant details of a bitter family feud. The portion of the testimony that does bear upon the case is of the most contradictory character. The following facts, however, seem to be conclusively proven.

May 8, 1872, John I. Meese made homestead entry of the tract, and at once took up his residence thereon, plowed the whole of it, set out an orchard and other trees, and built a house 24 x 24 feet, with five rooms, a cellar, etc. The house was built and the cellar and a well dug exclusively with money willed to his wife, Annette Meese, by her father and another relative. In the spring of 1877 Meese abandoned his wife, taking with him the four children. She learned his whereabouts, and went thither to obtain the children. A reconciliation ensued, and the entire family returned to live upon the tract. Prior to this, however, the husband had executed a relinquishment of the land, and the question arose how to regain legal possession thereof for the benefit of the reunited family. Finally it was arranged (upon consultation with an attorney) that John I. Meese's brother, David Meese, should make homestead entry of the relinquished tract, and hold the same in trust for his (John I. Meese's) family. David Meese made said entry June 20, 1877.

It was further arranged that the two brothers should cultivate the land in partnership, and David Meese (being an unmarried man) was assigned a room in the house as a sleeping apartment. This state of affairs continued until March 8, 1880, when John I. Meese died.

After the death of John I. Meese, David Meese for a time indicated and expressed to his brother's widow and other witnesses an intention to fulfill his agreement. But after a few months he began to' usurp authority and claim ownership to an extent which alarmed Mrs. Meese, and she (November 9, 1880) applied at the land office to contest his claim. He succeeded, by fair but ambiguous promises, in satisfying her that he had no intention to defraud her, and she withdrew the contest, upon his paying the expenses. Afterward he more boldly renewed his claim, threatening to "boot her off the land" and "pitch her traps out doors," and offering to rent or sell the tract as soon as he should have "proved up." Mrs. Meese now tried more vigorous measures than before to get rid of his presence and belongings; she refused to board him, or to allow him to enter the apartment which he had until that time occupied (when about the place), and put her own furniture into the room. Thereupon (August 23, 1882) he and three other men forced open the room, tore up the carpets from the floor, removed the furniture, and assaulted and struck Mrs. Meese when she interfered. Then he built a kitchen at the side of the house, in which to board his hired men and himself, (Mrs. Meese having refused to board them), and made an outside stairway whereby to reach the room which he still insisted upon claiming as "his" sleeping apartment.

It is shown affirmatively that Mrs. Meese has never been absent from the tract a fortnight at any one time (except when she went after her children on the occasion when her husband abandoned her) during the twelve years and over that have elapsed since her husband made entry of the tract. Her entire property was invested in the house and improvements upon the land, which, with the land, David Meese now claims. He asserts that he bought said house and improvements of his brother; but it appears that the latter never mentioned it to his wife, nor to any one else; and the only proof of any such transaction is the unsupported assertion of David Meese (never made by him until recently) long after John I. Meese's death.

Your office, March 14th last, affirmed the decision of the local office awarding the land to David Meese.

In my opinion, the so-called settlement and residence of David Meese, made in a building owned and at the time occupied by another party who was a prior bona-fide resident upon the land-a settlement made clandestinely and under false pretenses, and a residence maintained through misrepresentation and fraud, so long as they would avail, and afterward by physical force and violence—is not such a settlement and residence as the United States homestead law contemplates. The appellant having evidenced her good faith in the premises, and no valid