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months from survey in the field, and providing for filing with the Surveyor General, is repealed.

The restriction as to construction of the act of March 27, 1854, is called to your especial attention.

In cases governed by these provisions you will please conform your action thereto.

WILLIS DRUMMOND, Commissioner.

REGISTER AND RECEIVER.

Under date of July 20, 1872, this circular was reissued with the following additions:

By act of March 22, 1872, all filings in the State of California which would, under previous laws, expire prior to March 22, 1873, are held good until that date, both for offered and unoffered lands.

By act of May 9, 1872, all filings, both for offered and unoffered lands, in the States of Minnesota, Wisconsin and Michigan, and the Territory of Dakota, where settlement was made prior to its passage, are held good for one year from the time when they would expire under previous laws.

In other States and Territories the general provisions of this circular will apply. It will be observed that all filings for unoffered lands where settlement was made prior to April 14, 1870, expired on the 14th instant by operation of the act and joint resolution above quoted, except in the States and Territory covered by acts of March 22 and May 9, 1872, above referred to.

See No. 367 and Part II., Nos. 48, 55.

No. 365.

C. G. SHAW.

Shaw claimed to enter 195 acres.

Held-That he could only enter 160, or a quarter section. Cites 2 Stat., 313; 2 Opinions of Attorney General, 563, 578; 3 Do., 113. Definition of the term "quarter seciion."

DEPARTMENT OF JUSTICE,

OFFICE OF ASSISTANT ATTORNEY GENERAL, WASHINGTON, July 11, 1871. SIR-I have considered the case of Calvin G. Shaw, Pre-emption claim, covering S. E. 4 of S. W. 4, 35, 94, 53, and E. Lots 1 and 2 of N. W., N. E. 1, of S. W. 4, and W., Lot 1 of N. E. 1, 2, 93, 53, Dakota Territory.

Shaw filed a declaratory statement on this tract, May 6, 1867.

September 25, 1869, he proved up, paid for the land and took his duplicate receipt. The Commissioner, however, refused to confirm the entry on the ground that the filing covered tracts in all amounting to one hundred and ninety-five and eighty-six one-hundredths acres of land, and that the pre-emption act only allows the entry of one hundred and sixty acres, or a technical quarter section.

Shaw was informed by letter to the Register and Receiver, dated June 15, 1870, that he would be allowed to select which of the legal subdivisions he would omit from his entry so as to include his principal improvements, preserve the contiguity of the land remaining, and approximate to one hundred and sixty acres.

From this decision Shaw appeals.

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The pre-emption act of 1841 gives a settler the right to enter any number of acres not exceeding one hundred and sixty, or a quarter section of land."

A "quarter section" means a tract of land containing by intendment one hundred and sixty acres, not the amount of one hundred and sixty acres in a particular form. It is the technical term used to designate a certain legal subdivision of the public land ascertained by official survey under the laws of Congress (2 Stat., 313, Attorney General's Opinion II., page 563; II., p. 578, and III., 114. Rules and Regulations G. L. O., Pub. Ld. Laws, p. 543.)

It may and generally does contain just one hundred and sixty acres of land, but through the unavoidable inaccuracy of surveys in adjusting meridians, etc., it often exceeds or falls below that amount. It is still, however, the technical legal quarter section defined by law and ascertained by official survey.

The pre-emption settler has the right under the Act of 1841 to enter either one hundred and sixty acres in legal subdivisions lying contigu ous to each other without reference to the quarter section lines, or he has the right to enter a quarter section as such, in which case he can take the amount of land contained therein as shown by the official survey. In entering a "quarter section," he cannot, of course, depart from the ascertained lines, but must take one hundred and sixty acres or less, as the case may be.

In the case under consideration, Shaw claims by legal subdivision, but not according to the lines of a quarter section. Part of the land is in one township, in Sec. 2, and part in another township, in Sec. 35. He should be allowed to enter any number of the legal subdivisions contiguous to each other and including his dwelling so that the whole shall not in amount exceed one hundred and sixty acres, but he cannot under the act take more than that amount because the land claimed does not constitute what is legally known as a "quarter section."

I, therefore, recommend that the decision of the Commissioner be affirmed. Very respectfully,

W. H. SMITH, Asst. Atty. General.

HON. C. DELANO, Secretary of the Interior.

Concurred in by Acting Secretary Cowen, July 12, 1871.

[NOTE. The practice of the General Land-Office on this point may be stated as follows: "That in cases of an excess where the tract is not a technical quarter section the entry must approximate to 160 acres. In cases where the excess is small and the subtraction of a subdivision would force the claimant to lose an area below 160 acres, greater than the excess applied for, the entry on equitable grounds, is usually allowed."]

Commissioner's letter to Register and Receiver at Fargo, D. T., July 1, 1875.

No. 366.

DANIEL A. MALONE.

A pre-emptor may pay for part of his claim.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., October 13, 1874.

REGISTER AND RECEIVER, Oregon City, Oregon.

GENTLEMEN:-Your favor of the 23d ultimo forwarding the application of Daniel A. Malone to enter the E., S. E. 4, 11, and N. W. 4, S. W. 4, 12, 2, 12, rejected by you for the reason that he filed for 160 acres but is only desirous to enter 120 acres, has been received.

You state that Mr. Malone is pecuniarily unable to pay for his entire claim.

I see no reason why this application should not be granted, and you will therefore notify Mr. Malone that he may come forward and offer his proof for that portion he desires to enter.

Very respectfully,

S. S. BURDETT, Commissioner.

No. 367.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, D. C., June 25, 1872.

GENTLEMEN :-The following is an "act to extend the time for the payment for their lands by persons holding pre-emptions on the public lands," &c., approved May 9, 1872. [Part II., No. 55.]

Under this enactment, all filings, where settlement was made prior to its approval, whether upon offered or unoffered lands, are held good and extended one year from the time when they would expire under previous laws.

In receiving final proof and payment you will be governed accordingly.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

REGISTER AND RECEIVER.

No. 368.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 10, 1874.

GENTLEMEN:-Inclosed herewith find copy of an act approved June 3, 1874, entitled "An Act to extend the time to pre-emptors on the public lands in the State of Minnesota to make final payment." [Part II., No. 110.]

This applies to pre-emptors on offered and unoffered lands, including Fort Ridgely and Sioux Indian reservations. It does not apply to any pre-emptors save those whose claims were initiated on or before June 3, 1874, and whose period for proof and payment had not expired prior to that date. To such it gives two years additional to the time allowed

by other laws for proof and payment. You will give it effect accordingly. Please acknowledge receipt.

Respectfully,

S. S. BURDETT, Commissioner.

REGISTER AND RECEIVER, Minnesota.

(E) SALE AND FORFEITURE.

No. 369.

WEBSTER v. SUTHERLAND.

Held-That a written contract for the sale of growing trees, which the purchaser was to cut and remove as soon as the vender obtained a patent, was such a contract as is inhibited by the 13th section of the act of Sept. 4, 1841.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., October 19, 1872. SIR-I have considered the contested pre-emption case of Daniel Webster v. Martha J. Sutherland, involving the right to the N. E. †, Sec. 13, T. 18, S. R. 14, E. Topeka, Kansas.

Webster's claim has priority, is entirely regular and must succeed unless he is disqualified under the 13th section of the act of September 4th, 1841, by reason of his having contracted in writing to sell the timber on three acres of the land, the purchaser to take and remove the same as soon as Webster obtains the patent.

The said 13th section requires the pre-emptor before he shall be entitled to his patent to take an oath that "he has not directly or indirectly, made an agreement or contract, with any person or persons, whatsoever 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 or herself."

Is the growing timber, unsevered from the land, and which the purchaser is himself to cut and remove, an interest in the land? If it is, then a contract by which such growing timber is sold, is a contract by which "title" may "inure to the benefit" of such purchaser.

In my opinion such timber is a part of the realty, and a contract for its sale is such a contract as is inhibited by the 13th section. Teakle v. Jacob, 33 Penn. Stats. 376. Green v. Armstrong, 1 Druio, 550. Bishop v. Bishop, 1 Kernan, 123. Buck v. Pickwell, 1 Williams (vol.) 157. Putney v. Dey, 6 N. H. 431.

I reverse your decision, and herewith return the papers transmitted with your letter of the 30th of August last.

Very respectfully,

B. R. COWEN, Acting Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 370.

HUDSONPILLER v. QUEEN.

A verbal sale accompanied by delivery of possession of the land is such a contract as is prohibited by the 13th section act of Sept. 4, 1841.

DEPARTMENT OF THE INTERIOR,
Washington, D. C., Sept. 18, 1874.
case of R. F. Hudsonpiller v. William
N. W. N. E. section 15, 4 S. 8 W.,

SIR-I have examined the Queen, involving title to the

Concordia, Kansas, on appeal from your decision of September 1, 1873, in favor of Hudsonpiller.

The facts of the case are in the main correctly recited in your desision.

In my opinion the verbal sale by Queen to Morgan, accompanied by delivery of possession of the land sold, was such a contract or agreement as is prohibited by the 13th section of the act of September 4, 1841. It is a contract that might have been enforced in a court of equity by the grantee, as against the claimant. (Story's Eq., § 761, and cases there cited.) When Morgan assigned his interest in the tracts to Hudsonpiller, the latter succeeded to all the rights of the former, including the remedy in equity against Queen.

It is evident, therefore, that Queen is within the prohibition of the statute so far as this land is concerned.

I affirm your decision, and return herewith the with your letter of June 6, 1874.

Very respectfully,

papers

transmitted

W. H. SMITH, Acting Secretary.

To the Commissioner of the General Land-Office.

No. 371.

CATALA v. AUSTIN AND BATEMAN.

A sale should not be held to work a forfeiture of a pre-emption right unless it is a voluntary one and made while the party is in possession of his mental faculties.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., Oct. 12, 1874. SIR: I have examined the case of Henry Catala v. A. A. Austin and Francis Bateman, involving title to the S. E. 1, 4, 4, 6, Stockton, California, on appeal from your decision of December 11, 1873.

You awarded the land in controversy to Austin. Catala did not appeal, and the contest is now between Austin and Bateman. I think Austin's right is superior to that of Bateman, and I therefore affirm your decision awarding the land to him. Had Catala appealed, it is probable that the tract would have been given to him, as I do not concur with your office as to the effect of the alleged sale of Catala's house made by his guardian while he was insane.

I think that no sale should be held to work a forfeiture of a preemption right unless it was a voluntary one and made while the party was in the possession of his mental faculties. If made by a guardian while the pre-emptor was insane, and the pre-emptor should afterwards, and within a reasonable time, become sane and demand his pre-emption claim, (as was this case,) it should be awarded to him.

Very respectfully,

B. R. COWEN, Acting Secretary. Hon. Commissioner of the General Land-Office.

No. 372.

PHILIP WALDRON.

Held-That parol evidence was always admissible to defeat a deed or written contract on the ground of illegal consideration, duress, or

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