fraud, although such evidence directly contradict the statements contained in the instrument. Chitty on Contracts, 119. 2 Kent, 757. Boyce v. Grundy, 3 Peters, 219. Taylor v. Riggs, 1 Peters, 591. Russell v. Southard, 12 How. 139. See also Villa v. Rodriguez, 12 Wall., 323; where a deed absolute on its face was on parol evidence held to be a mortgage. Also, held-That the deed in the present case was invalid as a deed. It was intended as a mortgage, and the contingency upon which it was to take effect has not happened. It has become void and is not sufficient to disqualify Waldron from making his entry. Decision by the Secretary, Dec. 22, 1874. No. 373. SHUSTER v. GRADY ET. AL. Mortgages, which have been released, are no bar to the completion of a preemption claim. Parties who take no appeal from a decision are considered bound thereby. DEPARTMENT OF THE INTERIOR, Washington, D. C, January 29, 1874. SIR-I have considered the appeal taken by John Shuster from your adverse decision of April 3, 1873, in the case of John Shuster v. Thomas O. Grady et. al., involving his right to the W. of N. E., and S. E. of N. W. of Section 13, T. 6 N., R. 10 W., M. D. M., San Francisco District, California. Your only grounds of decision against him appear to be the fact that at the dates of trial and your decision there were subsisting two mortgages executed by him against the land he claims. These have been released and I think there is now no valid objection to his completing his claim in conformity to law. Your decision is modified accordingly. The other parties interested in your decision not having taken an appeal therefrom are considered bound thereby. The papers in the case transmitted with your letter of Oct. 9, 1873, are herewith returned. Very respectfully, C. DELANO, Secretary. HON. W. DRUMMOND, Commissioner General Land-Office. No. 374. II. VERSUS HOMESTEADS. DAVID BURKETT. Burkett filed as a pre-emptor and afterwards applied to file on another tract as a homestead. Held-That he could not file on both. He could not reside on both. He must elect which he will hold. DEPARTMENT OF THE INTERIOR, Washington, D, C., 3d Feb., 1872. SIR-I have considered the case of David Burkett appealed from your office. Burkett, November 11, 1870, filed as a pre-emptor on the S. W. 4, Section 18, T. 94, R. 46, Sioux City, Iowa. On the 2d Oct., 1871, he applied to take the W. of the tract as a homestead, and the E. under the pre-emption filing. This he could not be permitted to do, as both the homestead and preemption laws require residence on the tract claimed under them, and Burkett could not have a legal residence on both of the two tracts claimed by him under the different laws. He should, however, be permitted to complete his title to either half as claimed by him or to the whole tract as a pre-emption. Your decision to this effect is affirmed and the papers herewith returned. Very respectfully, C. DELANO, Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office. No. 375. BEEBE v. HURLBURT. While the land was withdrawn Beebe entered with his family. On the day of its restoration Hurlburt made a homestead entry on it. Afterwards Beebe, and on the same day of restoration, asked leave to file his D. S. on the same. Held-That he had entered wrongfully, and that to allow him to take the land as against Hurlburt, would be to allow him to take advantage of his own wrong. DEPARTMENT OF JUSTICE, OFFICE OF ASSISTANT ATTORNEY GENERAL, SIR-I have examined the case of Day Beebe v. Thomas B. Hurlburt involving the right to N. E., Section 33, T. 9, N. R. 1 E., Marysville, California. The land in controversy was withdrawn for railroad purposes February 14th, 1865. July 6th, 1870, it was restored to pre-emption filing and homestead entry by published notice in accordance with a letter of the commissioner dated May 6th, 1870. On the day of its restoration Hurlburt appeared at the local office and applied to enter the tract as a homestead. His application was received; he made the required affidavit, paid the fee and received duplicate homestead receipt No. 779. About an hour afterwards Beebe appeared at the land office and offered to file a declaratory statement on the tract as a pre-emptor. This the Register refused to receive on the ground that the tract was covered by the homestead entry of Hurlburt. The Commissioner sustained the decision of the local officer, and Beebe appealed to the Secretary. At the date of its restoration Beebe was living with his family on the land in controversy, where he had a house and other improvements. Hurlburt claimed a possessory right to the land under the laws of California, in the prosecution of which he had recovered judgment against Beebe in one of the local courts. Beebe did not by reason of his settlement before restoration acquire any right to the land, and the only question presented for decision is whether his occupancy of the land on the day of its restoration was an initiation of a pre-emption right to which the homestead entry must be subject. I am of opinion that it was not. He entered wrongfully, and to allow him to hold the land as against a person who had in all respects complied with the law would be to reward him for doing an unlawful act. I recommend that the decision of the Commissioner be affirmed. W. H. SMITH, Asst. Atty. General. HON. C. DELANO, Secretary of the Interior. No. 376. CRYSTAL v. DAHL AND ENO v. McDONALD. Land when once appropriated under the homestead law, is thereafter removed from pre-emption settlement and homestead entry, and can only be again subject to them by a cancellation of the homestead entry in the manner prescribed by law. Such cancellation becomes effective at the date of the receipt of the order therefor at the local office. To initiate a valid right under the pre-emption law to a tract of land covered by a homestead entry, some act of settlement must be performed by the pre-emptor subsequently to the cancellation of said homestead entry. DEPARTMENT OF JUSTICE, OFFICE OF ASSISTANT ATTORNEY GENERAL, Washington, D.C., April 13, 1872. SIR-I have examined the case of Garrett Crystal v. Martin Dahl, involving the right to enter S. E., sec. 12, T. 2 S., R. 7 W., Concordia, Kan., on appeal from the decision of the Commissioner of the General Land Office of Nov. 17, 1871. Crystal settled on the land in controversy in December, 1870, at which date there was no land-office in the district where the tract was situated, the old one at Junction City having been closed Nov. 30, 1870. The new one at Concordia was not opened until Jan. 16, 1871. On this last mentioned date, Dahl entered the tract as a homestead. Subsequently, Crystal applied to file as a pre-emptor, alleging settlement in December, 1870. His application was at first refused by the local officers, but was afterwards allowed on receipt of the Commissioner's circular of Dec. 30, 1870. When the old office at Junction City was closed, the land in controversy was covered by a homestead entry, which was subsequently, to wit, on the 6th day of December, 1870, cancelled by the Commissioner, notice of such cancellation being sent to the local land-office at Concordia. The Commissioner held that the homestead entry of Dahl was made subject to any rights that might be filed for within the time allowed by law, and that as Crystal within that time made several applications to file, and was in fact the first of the two claimants to settle on the land, he was entitled to enter the same, and that the homestead entry of Dahl should be cancelled. From this decision Dahl has appealed. While covered by an uncancelled homestead entry, land is not subject to pre-emption settlement or homestead entry. When once appropriated under the homestead law, it is thereafter removed from such settlement and entry, and can only be again made subject to them by a cancellation of a homestead entry in the manner prescribed by law. (See my opinion in the case of Bowman, in answer to letter of Senator Corbett, where this point is fully discussed.) The order for cancellation takes effect from the date of its receipt by the local officers, subject, of course, to the right of appeal. Crystal settled before the cancellation of the prior homestead entry, and therefore acquired no right by virtue of such settlement. Neither can he take advantage of the fact that he was on the land at the date of the cancellation to antedate the right of Dahl, who, during the regular office hours of that day, appropriated it under the homestead law. He was on the tract wrongfully, and cannot be allowed to take advantage of his own wrong to the prejudice of another claimant in good faith, who has fully complied with all the requirements of law. On the very day the old entry was cancelled, and before Crystal asserted his claim by asking to file, Dahl acquired a homestead right in the manner pointed out by the statute. This again removed the land from pre-emption and homestead appropriation, and the local officers very properly rejected in the first instance the proffered filings of Crystal. This view of the law is entirely consistent with the circular of December 30, 1870, which the local officers seem to have misinterpreted when they allowed the filings of Crystal. I recommend that the decision of the Commissioner be reversed, and that the entry of Dahl be allowed to stand. The case of Gilman J. Nelson v. Peter Crystal, in the same land district, on appeal from a similar decision of the Commissioner, involves identically the same facts, and should receive a like disposition. Very respectfully, W. H. SMITH, Asst. Atty. General. HON. C. DELANO, Secretary of the Interior. DEPARTMENT OF THE INTERIOR, Washington, D. C., Aug. 5, 1874. SIR-I have examined the case of Charles G. Eno v. W. H. McDon ald, involving the title to N. W. 4, Sec. 10, T. 6, R. 10, Cawker City, Kansas, on appeal from your decision of Nov. 21, 1873. One Isaac Ă. Schafer made homestead entry of the tract May 18, 1871, which entry was cancelled by letter of your office, dated October 16, 1872, received at the local office October 29, 1872. October 30, 1872, Eno entered the land as a homestead. January 10, 1873, McDonald filed amended declaratory statement, alleging settlement October 26, 1872. The material part of your decision is in the following words, viz: "McDonald appears to have made his settlement October 26, 1872, as alleged in his D. S., and to have occupied a house upon the land belonging to J. Moulton, which he subsequently bought, together with all the improvements of the said Moulton. At the date of his first settlement upon the land he could gain no rights to the same, it then being covered by the uncancelled homestead of Schafer; but upon the receipt of the cancellation of said homestead at the district office, he being found upon the land, his right attached, eo instante, to the exclusion of the homestead right of Eno, filed the morning of October 30, and the homestead of Eno will accordingly be held subject to the ability of the said McDonald to perfect his claim under the pre-emption law." From this decision appeal has been taken to the Department by Eno, and error in two respects alleged: first, your finding of fact that McDonald settled in good faith prior to cancellation and the entry by Eno; second, your application of the law to the facts found. Admitting your statement of fact to be correct, (which is all that is claimed for McDonald,) I am of opinion your decision should be reversed. The cancellation of the prior homestead entry took effect when notice of such cancellation was received at the local office, and then, and not till then, was the land subject to further entry or settlement. (Crystal v. Dahl, Secretary's decision, April 13, 1872. Opinions Assistant AttorneysGeneral, vol. 2, p. 5.) Subsequently to this receipt Eno entered the tract as a homestead. McDonald's settlement as a pre-emptor, Oct. 26, 1872, was invalid, because made while the land was yet reserved by the uncancelled entry of Shafer, and he cannot be allowed to take advantage of his own wrong to defeat the right of Eno by claiming through it a prior right initiated subsequently to the cancellation. (Beebe v. Hurlburt, Secretary's decision, July 29, 1871. Opinions Assistant AttorneysGeneral, vol. 2, p. 149.) Your decision is, therefore, hereby reversed, and the homestead entry of Eno will stand as valid. The papers transmitted with your letter of April 20, 1874, are herewith returned. Very respectfully, W. H. SMITH, Acting Secretary. To the Commissioner of the General Land-Office. A person in possession of a valid pre-emption claim may at any time within the lifetime of the filing commute it to a homestead, and that in so doing his right will relate back to the date of his settlement to the exclusion of intervening adverse claims. DEPARTMENT OF THE INTERIOR, Washington, D. C., June 19, 1872. SIR-I have considered the case of J. F. Ross v. Duncan Sinclair, involving the right to the W. of S. E. and E. of S. W. 1, Section 28, T. 5 S., R. 4 E., Concordia, Kansas, offered land, coming up from your Office on appeal. Ross, May 10, 1871, filed D. S., alleging settlement on the land May 5, 1871. On May 15, 1871, he commuted the same to a homestead. Sinclair, June 9, 1871, filed on the tract, alleging settlement May 10, 1871, and claims that as his settlement antedates the initiation of Ross' homestead claim, and as a homestead entry takes effect only from its date, he, Sinclair, should be permitted to take the land. I am of opinion that a person in the possession of a valid pre-emption claim may at any time commute it to a homestead, and that in so doing his right will relate back to the date of his settlement, to the exclusion of intervening adverse claims to the land. I therefore affirm your decision declaring Ross' right to the land as a homestead, and rejecting Sinclair's pre-emption claim. The papers in the case, transmitted with your letter of May 10, are herewith returned. Very respectfully, C. DELANO, Secretary. HON. WILLIS DRUMMOND, Commissioner of General Land-Office. |