affidavit, corroborated by the affidavits of his wife and five other persons, repeating the allegation of his insanity at the date of his relinquishment, denying William's charge of abandonment, and alleging that William, since the date of his entry, had not complied with the provisions of the homestead laws. All of ex-parte affidavits were more or less circumstantial.

On consideration whereof, your office, by letter "C" of May 27, 1892, directed the local officers to order a hearing to obtain additional information, to the end that your office might be able to properly determine whether Thomas Kay's relinquishment on May 18, 1891, was made with full knowledge of its real import.

The hearing was had, and on September 3, 1892, the local officers rendered their joint decision recommending that the prayer of Thomas Kay be denied, and that the homestead entry of William Kay be allowed to remain intact.

Thomas Kay appealed to your office. On February 13, 1893, your office reversed the decision of the local officers, and held William Kay's homestead entry No. 9117 for cancellation, and the homestead entry of Thomas Kay, No. 8243, for re-instatement.

William Kay has appealed to this Department.

I agree with your office in holding that the only issue now pending in this case, relates to the sanity or insanity of Thomas Kay on May 18, 1891. Testimony relating to transactions before or after that date is relevant only so far as it may tend to show his state of mind on that date.

It is a presumption of law that all men are sane, and the burden of proof is upon the person alleging insanity. Where, however, a person has been proven to be insane, the presumption is that the insanity continues, and the burden of proof shifts to the party alleging sanity. (11 Am. and Eng. Encyclopedia of Law, 159–160.)

On March 18, 1891, Thomas Kay was carried to the office of Dr. D. O. Miner, suffering with sub-acute meningitis, in a condition of imbecility bordering on idiocy; all his mental faculties were blunted. When Dr. Miner last saw him, on May 5, 1891, he had so far improved as to apparently be able to take care of himself, although at that time in asking any question, it required considerable time for him to perceive what you were speaking about. There was a dulness or blunting of his mental faculties at that time. He was seen to go into a chicken coop and catch a chicken, and pull the feathers from the living fowl and eat the feathers. Other instances of insane conduct are related by the witnesses. The proof is clear that Thomas Kay was insane during the months of March, April, May and June, 1891.

The testimony tending to prove a lucid interval on May 18, 1891, is insufficient.

Your office decision is hereby affirmed.

CONTEST-RELINQUISHMENT-CONTESTANT.

YOUNG v. MASON.

If a relinquishment is filed as the result of a contest the contestant should have the benefit thereof, even though the contest affidavit is technically insufficient to warrant a hearing.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. 1. H.) (W. F. M.)

1894.

On May 1, 1889, Walter Page made homestead entry of the SE. of section 26, township 12 N., range 3 W., of the Oklahoma City land district.

On January 3, 1891, George Young filed an affidavit of contest, alleg. ing that Page had violated the law by premature entrance into the Territory.

On March 19, 1892, Page's relinquishment of his entry was filed in the local office, and on the same day Susan Mason was allowed to make homestead entry for the same land.

It appears that contestant Young's corroborating witness, on February 4, 1892, filed in the local office a further affidavit, stating "that since the corroboration of said contest affidavit aforesaid, he has become satisfied that he was mistaken in the identity of the said Walter Page, and that he did not see the said Walter Page as sworn to by him. He now desires to withdraw said corroboration, and asks same be not considered."

From your office decision finding that Young's affidavit disclosed no personal knowledge as to the facts alleged, and holding it to be technically insufficient and dismissing said contest, the matter has been brought here on appeal.

It appears to be true that from a technical point of view, the contest of Young is insufficient, yet this Department has held that the filing of a defective affidavit may become the efficient cause of a relinquish ment, and in that event the contestant should have the benefit thereof; and in a case similar to the one at bar a hearing was ordered for the purpose of determining whether or not such a defective affidavit had brought about a relinquishment after the institution of the contest. Hay v. Yager et al., 10 L. D. 105.

The decision of your office is, therefore, modified, and it is now directed that a hearing be ordered for the purpose of determining whether or not Page's relinquishment was the result of the contest initiated by Young.

ADY v. BOYLE.

Motion for the review of departmental decision of December 15, 1893, 17 L. D., 529, denied by Secretary Smith, July 2, 1894.

RAILROAD LANDS. ACT OF MARCH 3, 1887.

SWINEFORD ET AL. v. PIPER.

The last proviso to section 5, act of March 3, 1887, only applies to settlers whose rights were acquired after December 1, 1882, and prior to the passage of said

act.

Section 5 of said act is not repealed by the act of March 2, 1889.

That a deed of the land purchased from a railroad company is not delivered until after the passage of said act, does not defeat the right of such purchaser, or his assignee, to perfect title under section 5 thereof, if the sale by the company was in fact made prior to the passage of said act.

Secretary Smith to the Commissioner of the General Land Office, July (J. I. H.)

2, 1894.

(A. E.)

The record in this cause shows that on September 23, 1890, George F. Piper filed an application to purchase Sec. 25, Tp. 48, R. 15 W., Ashland (Wisconsin) land district, by virtue of the 5th section of the act of March 3, 1887, and gave notice of his intention to submit proof in support of his application, on November 5, 1890. This proof, though made on the day fixed, being declared premature by your office, Piper gave new notice and made new proof on March 3, 1891. On this date Curtis A Swineford, Charles M. Bird, Charles D. Bell and Benjamin M. Paddock appeared and protested. The local office having recommended that the applicant be allowed to purchase, the protestants appealed to your office.

By decision of December 6, 1892, your office affirmed the action of the local office. From this Swineford, Paddock, Bell and Bird appealed to this Department.

The land in controversy was within the grant of May 5, 1864, to the State of Wisconsin to aid in the construction of railroads, and under that grant fell within the ten miles limit of the Chicago, St. Paul, Minneapolis and Omaha Railroad.

By the adjustment, the railroad company only received one half of the land, the other reverting to the United States. The company and the United States did not take this land in common where it came within the Wisconsin Central Railroad grant, made by the act of 1864, nor did the latter road take it in common with the Omaha Company. But it was held by this Department, that the Wisconsin Central could not go within fifteen miles of the Omaha road for any lands whatever because the lands within those limits were reserved from the Central

grant, a different condition from the ordinary lapsing of the granted limits of two roads under the same grant was presented; and it was held, under those circumstances, that the Omaha Company was only enti tled to the one undivided half of the lands within said granted limits, and that the other half belonged to the government. Therefore, it being impossible to issue for the benefit of said company a patent for an undivided moiety of said lands, or patent to the state for the whole for the joint benefit of said company and the United States, it became necessary to reject the former lists, presented by the company, and to require it to specify particular tracts, which in the aggregate would amount to one half of the lands within its granted limits, so that patents conveying full title to the same might be issued therefor. Chicago, St. Paul, Minneapolis and Omaha Ry. Company, 11 L. D., 607. Thus, this land, though within the grant, was excepted from it, and therefore comes within the 5th section of the act of March 3, 1887.

Under the construction given by this Department, the last proviso of this section only applies to settlers who have settled after December 1, 1882, and before March 3, 1887, therefore, as the protestants do not show or even allege settlement before March 3, 1887, it can not be seen wherein they have acquired any rights by the provisions of said section. Chicago, St. Paul, Minneapolis and Omaha Ry. Co. (11 L. D., 607); Union Colony v. Fulmele (16 L. D., 273).

It is not the right to purchase that entitles the purchaser to the remedy of this section, but the fact that he is a purchaser.

As regards the contention that the 5th section of this act was repealed by the act of March 2, 1889 [25 Stat., 854], it need only be said that the repeal of laws by implication is not favored, and, owing to the fact that the 5th section of the act of March 3, 1887, vested a remedy in those who had purchased of the railroad company in good faith, the Congress certainly had no intention of taking that remedy away before the Department could ascertain or pass upon it, as in the case under consideration. Therefore, the point is not well taken.

The record in this case shows that on February 3, 1887, Isaac Burhans purchased for the sum of $1,600 the land in controversy from the railroad company, it having prior to that time been patented to the company by the State. The validity or invalidity of this patent does not affect the rights of the applicant, an assignee of the purchaser, and need not be considered; it is sufficient to say that there was reason for Burhans to believe that the company had good title. On making this purchase Burhans paid one half of the purchase money in cash, and the company agreed in writing to convey the land to him on receipt of the remainder of the price, which it did after the passage of the act of 1887.

The payment of Burhans of one half of the purchase price for this land was the purchase, and he secured a title at that time which he could have enforced, admitting the seisin of the company, and the fact that the evidence of his purchase was not delivered to him until after

the passage of the act does not change the date of the sale, nor take the case without the remedial features of the law. The object of the law was to confer protection upon those who had parted with good consideration under the belief that they were obtaining good title.

From Burhans the land by a series of conveyances came into the hands of Piper for valuable consideration. As the act applies to heirs and assignees, Piper comes within its provisions, if the original grantee did; therefore, in view of the foregoing, Piper is entitled to purchase the land, and your office decision in so holding is affirmed.

GEORGE A. MORRIS.

Motion for review of departmental decision of November 8, 1893, 17 L. D., 512, denied by Secretary Smith, July 2, 1894.

RAILROAD GRANT-WITHDRAWAL-CONTESTANT.

ATLANTIC, GULF AND WEST INDIA TRANSIT Co. v. LUTZ.

A homestead entry, improperly allowed of lands withdrawn for the benefit of a railroad grant, confers no right as against the grant; nor does the successful contestant of such entry secure any right against said grant.

Secretary Smith to the Commissioner of the General Land Office, July 2, (J. I. H.) (J. L. McC.)

1894.

The Atlantic, Gulf and West India Transit Company has appealed from the decision of your office, dated June 18, 1883, directing the local officers to allow Jacob C. Lutz to make homestead entry of the NE. of Sec. 19, T. 28 S., R. 19 E., Gainesville land district, Florida. The land lies within the six-miles (granted) limits of said company's railroad; but your office holds that it was excepted from the grant because of having been embraced in the homestead entry of one Thomas S. Daniels, made March 13, 1877, which was canceled January 13, 1883, upon a contest initiated by said Lutz-said homestead entry having been in existence at the date of the acceptance and approval of the map of definite location of the railroad (January 28, 1881), and of the approval of the map (March 21, 1881).

This Department, in considering lists Nos. 1, 2, and-3 of selections made by the Atlantic, Gulf and West India Transit Company (2 L. D., 561), held that Secretary Schurz, by his decision of January 28, 1881, authorizing and directing the withdrawal of March 26, 1881, merely continued in effect the withdrawal made in 1856, and re-affirmed in 1857. This ruling was re-affirmed by Secretary Lamar in his decision of August 30, 1886 (5 L. D., 107), holding that the rights of the road were protected by the original map of definite location (filed in 1860).