No. 292. (D) FINAL PROOF. CIRCULAR. DEPARTMENT OF THE INTERIOR, Dec. 20, 1873. GENTLEMEN:-In a number of cases, persons who have initiated titles to the public lands under the Homestead Law have allowed the limitation provided by the statute to expire without making the final proof of settlement and cultivation required by that act. Therefore, in all such cases as now exist in your district, or may hereafter arise, you will notify the parties of their non-compliance with the law, and that thirty days from date of service of notice will be allowed to each of them within which to show cause why their claims shall not be declared forfeited and their entries canceled. At the expiration of that time you will report the reasons given, or, in case of failure, report that fact, so that in either event proper action may be had by this Office. But you will in no case allow the lands embraced in such claims to be re-entered until you shall have received from this Office a formal notice that the original entries have been positively cancelled. I append a form of notice which you will be pleased to adopt. Very respectfully, WILLIS DRUMMOND, Commissioner. REGISTERS AND RECEIVERS, United States Land Offices. A B FORM OF NOTICE. (Place of residence, or, that being unknown, address to the Post Office nearest to the land.) SIR: You are hereby notified that the Homestead Law requires final proof of settlement and cultivation to be made within two years after the expiration of five years from date of entry, and that in case of your entry No.-, for, dated the time fixed by the statute has expired without the requisite proof being filed by you. You will, therefore, within thirty days from date of service of this notice, show cause before us why your claim shall not be declared forfeited and your entry canceled for non-compliance with the requirements of the law, so that the case may be reported to the Commissioner of the General Land-Office for the proper action. Register. Receiver. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., September 9, 1874. TO REGISTERS AND RECEIVERS. GENTLEMEN :-Attention has been called to numerous cases where entries have been made under the Homestead Law, and full time required by law in which to make final proof has elapsed without such proof having been presented. It is presumed that in many cases this neglect arises from ignorance of the law, and that parties who have in good faith resided upon and cultivated their homesteads suppose that they have fully complied with the statute, and that nothing further is required on their part. To remedy this, and prevent the great hardships which might arise from neglect in this important feature of the law, you are hereby instructed to examine your abstracts of homestead entries, and in every case where the term of five years from the date of entry has expired, you will send to the proper party a copy of the accompanying notice, filling in the description, etc. It is important that this should be done. at an early day. You will, hereafter, at least once a month, examine your abstracts, and give the same notice in case of the expiration within the preceding month of the term referred to. Care should be taken to learn the Post Office addresses of parties affected by these instructions, and it would be well that in future applications under the Homestead Law the address of the applicant be taken. It is to be understood that this does not supersede the Circular of December 20, 1873, but is intended to prevent cases for which that circular was issued from arising. Respectfully, S. S. BURDETT, Commissioner. No. 294. JOHN DILLON. John Dillon made homestead entry and died, leaving a widow and children. His widow asked to commute and have the patent issued to her. D. H. Dillon asked that the patent should issue to the children. Held-That it should issue to the widow. Held, also―That any person should be allowed to commute who is, at the time the application to commute is made, the person entitled at the proper time, to prove up the claim, providing such claim, so far as it has progressed, is valid. DEPARTMENT OF JUSTICE, OFFICE OF ASSISTANT ATTORNEY GENERAL, Washington, Oct. 31, 1871. Sec. SIR: I have examined the appeal of D. H. Dillon from the decision of the Commissioner of the General Land-Office, relative to the original homestead entry of John Dillon of S. N. E. and W. S. E. 8, T. 9, N. R. 7 E. R. & R. 855, from Nebraska City District. John Dillon, shortly after he had entered the tract, died, leaving a widow and several children. His widow, Ellinor J. Dillon, made application to commute her late husband's entry to a cash entry under the 8th section of the Homestead Act, which was allowed July 21st, 1870. The heirs of John Dillon now ask that the patent be issued to them. The Commissioner decided that during the life of a widow of a deceased homestead claimant, a patent could not issue to the heirs. I agree with the Commissioner in his construction of the law, and with his application of it to this case. The second section of the. Homestead Act provides that no patent shall be issued until after five years from the entry, and then on proof of certain facts by "the person making such 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." Under this proviso four and only four classes of persons, can, in my opinion, make the final proof required. 1. The person who made the entry. 2. In case of the death of the person making the entry, his widow. 3. In case of the death of the person making the entry, and the widow, then the heirs or devisee of such person. 4. In case the person making the original entry was a widow, and she be dead, then her heirs or devisee. Neither of these classes include the heirs of the person who made the original entry, while the widow is yet living. In my opinion Congress intended to give the widow, if living, the benefit of the entry made by the deceased husband. It did not intend to give the heirs or devisee the right to perfect the entry so long as the widow lived. A similar view of the law to the one I have expressed was taken by the Department in case of heirs of Patrick Gleason v. M. Gleason, July 18th, 1870. Any person should be allowed to commute under the 8th section from homestead to cash entry, who is at the time the application to commute is made, the person entitled at the proper time to prove up the claim, providing such claim, so far as it has progressed, is valid. Ellinor J. Dillon was the person so entitled on the day she made application to commute. The patent, therefore, upon her full compliance with all the requirements of law, should be issued to her. I rcecommend that the decision of the Commissioner be affirmed. Very respectfully, W. H. SMITH, Asst. Atty. General. HON. C. DELANO, Secretary of Interior. No. 295. A. F. HUBBELL. 1. A soldier who has made an entry under the homestead laws need not credit his term of military service on the five years' residence. 2. In case of death of homestead settler prior to expiration of the five years, his heirs or devisee may commute or continue cultivation and settle ment. 3. If death occurred after the expiration of the five years the heirs or devisee may at once make proof. In the second and third cases, patent would issue in the name of "the heirs" of deceased, or in the name of his devisee. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., Sept. 25, 1874. MR. A. F. HUBBELL, Fonda, Iowa. SIR-In reply to your letter of the 22d of July last, I have to say, first, a soldier who has made an entry under the homestead laws is not required to avail himself of the privileges of the act of June 8, 1872, as regards crediting his term of military service in the United States army during the late civil war as a part of his five years' residence and cultivation required by act of May 20, 1862. The matter of availing himself of such privilege is optional with him. Second. In case an unmarried homestead settler dies prior to expiration of five years from date of entry, his heirs or devisee may commute the same under the 8th section, act of May 20, 1862, or may continue the settlement and cultivation of deceased and make proof at the expiration of said five years. Third. In case such settler dies after completing five years' settlement and before making proof his legal heirs or devisee may at once make proof. In the second and third of the above stated cases, patent would issue in the name of "the heirs" of deceased, or in the name of his devisee. Very respectfully, S. S. BURDETT, Commissioner. No. 296. FREDERICK A. HASKALL. The brothers of a deceased settler, in case there are no others heirs, will be allowed to make final proof, and the final papers will be made out in the name of the deceased settler. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., August 4, 1874. REGISTER AND RECEIVER, Lincoln, Nebraska. GENTLEMEN :-I am in receipt of your letter of June 23 last, enclosing the affidavit and other papers of Jason F. Haskall, applying to be allowed to make final proof on his deceased brother's homestead, No 12,119, on the S. W. of Sec. 14-11-8 W., made by Frederick A. Haskall, at your office, November 9, 1872. In reply I have to state that, in consideration of the fact that Jason F. Haskall and brother are the only living heirs and next of kin of Frederick A. Haskall, deceased, and it appearing from the evidence presented that the deceased resided upon the land embraced in his homestead entry for one year prior to his death, which, added to his terms of military service in the United States army during the war of the rebellion, as shown by certified copies of his certificates of discharge attached to the affidavit referred to, make the five years required by the act of May 20, 1862, you are hereby authorized to allow Jason F. Haskall to make final proof on said homestead on payment of the proper commissions; and you will issue the papers in the case in the name of Frederick A. Haskall, and forward the same to this Office with your current returns, referring to this letter by "C" and date. The papers forwarded in connection with this case are here with returned. Very respectfully, S. S. BURDETT, Commissioner. [Final papers will issue in name of "the heirs." See No. 295.] No. 297. GEO. BATES. Homesteads may be taxed where the right to the patent is complete. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., Dec. 15, 1874. Mr. GEORGE BATES, Sullivan, Franklin County, Missouri. SIR: In reply to your letter of the 16th ultimo, relative to the taxation of lands embraced in homestead entries prior to the issue of patents therefor, I have to refer you to section 4 of the homestead act of May 20, 1862, as found on page 11 of circular of Aug. 30, 1872, herewith enclosed. The Supreme Court of the United States, in a recent case, has thus stated the doctrine held upon the general subject: "While we recognize the doctrine heretofore laid down by this court, that lands sold by the United States may be taxed before they have parted with the legal title by issuing a patent, it is to be understood as applicable to cases where the right to the patent is complete, and the equitable title is fully vested in the party without anything more to be paid or any act to be done going to the foundation of the right." Very respectfully, S. S. BURDETT, Commissioner. (E) ABANDONMENT. No. 298. CIRCULAR. DEPARTMENT OF THE INTERIOR, GENTLEMEN:-In order to secure a regular system and facilitate the business of the Department, you are hereby instructed to observe the following regulations respecting all cases of abandoned and relinquished homesteads: 1st. A settler desiring to relinquish to the United States his homestead claim, must surrender his duplicate receipt, his relinquishment being indorsed thereon. If, however, he has lost his duplicate receipt, that fact must be stated in his relinquishment, to be signed by the settler, acknowledged before the register or receiver, or other officer competent to administer oaths, whose official character must be certified under seal, and attested by two witnesses. Numerous relinquishments of homestead entries have been reported in which it is alleged that prior to such entries there existed actual settlement, by persons other than the homestead party, upon the tracts embraced in such entries. It has, in this connection, been represented that such relinquishments were made to avoid vexatious and expensive contests, with a disclaimer of any intention to appropriate the improve. ments of others. In dealing with such cases you will be guided by the following instructions: You will require the affidavit of the homestead party to be substantiated by disinterested testimony showing That the tract is in the actual adverse possession of the party that may be named in the affidavit, or that he has valuable improvements thereon; setting forth the nature and extent of such improvements. Also, that the adverse interest is a substantial one, and accrued prior to the date of the homestead entry. The evidence may be taken before you, or before some person authorized to administer oaths. In case such officer has no official seal, the certificate of the clerk of the court, under seal, must be appended, showing his authority. 2d. When a homestead entry is contested and application is made. for cancellation, the party so applying must file an affidavit setting forth the facts on which his allegations are grounded, describing the tract and giving the name of the settler. You will then set apart a |