Under any proceedings that may involve the cancellation of an entry, a transferee has the right to be heard on the question of the entryman's compliance with law. A transferee may file with the local officers a statement, under oath, disclosing his interest in any entry, and thereafter be entitled to notice of any proceedings against said entry. The local officers are under no obligation to search the county records, before giving notice of a hearing or contest, to ascertain whether the land has been transferred or encumbered. If a special agent in his investigation of an entry is informed of a transfer he should search the records for evidence thereof. A transferee whose interests are duly shown on the entry records may be allowed a hearing, where the entry, without notice to him, is canceled under proceedings based upon the report of a special agent(1).

f. ABANDONMENT AND CONTEST.

At any time after six months from entry and before the expiration of the required five years of residence, if it is proved to the satisfaction of the Land Department that the settler has changed his residence or abandoned the land embraced in his homestead entry for more than six months at any time, such entry will be canceled and the land revert to the Government. Abandonment or change of residence is the usual cause for which a homestead entry can be attacked prior to the end of the required five years of residence and cultivation. Where application is made to contest a homestead entry on the ground of abandonment the party must file his affidavit with the district land officers, setting forth the facts on which his application is founded, describing the tract, and giving the name of the settler.

Upon this the officers will set apart a day for a hearing, giving all the parties in interest due notice of the time and place of trial.

Personal notice must be served by a disinterested party, and a copy must be filed, with an affidavit that the notice has been legally served.

In case of inability to make personal service of the notice, and when it becomes necessary to serve it by publication, it must be printed in some newspaper printed in the county where the land in contest lies; and if no newspaper is printed in such county, then in the newspaper printed in the county nearest to the land.

At least two witnesses are required to prove abandonment, and their testimony must be clear and positive.

The expenses incident to such a contest must be defrayed by the contestant, and no entry of the land can be made until the district officers have received notice from the General Land Office of the cancellation of the contested entry; and now an informant obtains privileges. Every other person must, if he desires the land, ascertain by proper diligence when notice of cancellation is received by the register and receiver, and then make formal written application for the tract; the land, after reception by these officers of notice of cancellation, being always open to the first legal applicant, unless withdrawn from entry by competent authority. The preference right of a contestant is recognized by act of May 14, 1880.

The successful contestant has thirty days after notice of his success within which to make an entry of the land in contest. This is called the preference right of entry. This right cannot be sold or assigned.

(1)United States v. Thomas et al., Land Owner, V. 16, p. 205.

In view of the numerous fine points and technicalities to be observed in commencing a contest against an illegal or abandoned entry, or, on the other hand, in defending his own entry, the interested party will find it decidedly cheaper to hire a good attorney to help him win his case. Copp & Luckett, of Washington, D. C., have an extensive acquaintance, and will be glad, without charge, to recommend a local attorney to protect contestants' or settlers' rights.

After the contest record and papers reach the Land Department in Washington, Copp & Lucket will be ready to aid all who wish their services, for moderate fees.

e. RELINQUISHMENT.

A party may relinquish his claim, but on his doing so, the land reverts to the Government. The party so desiring should surrender to the register and receiver of the proper land district the duplicate receipt issued for the entry, with his written relinquishment of the same indorsed thereon.

If the duplicate receipt has been lost, he should submit to those officers a written relinquishment of the entry, in which he should state the fact of the loss of the duplicate receipt, and which should be duly signed and acknowledged before the register or receiver, or before some officer authorized to take acknowledgments. (See act of May 14, 1880, following.)

USUAL FORM OF RELINQUISHMENT OF HOMESTEAD AND TIMBER

EMPTION FILINGS.

ENTRIES AND PRE

of

County of

and

his wife, do hereby grant, remise, and relinquish all right, title, and interest in and to the land described in the Receiver's receipt No.- hereunto attached, to the Government of the United States, to wit, section No. -, township No. range No., and ask that the same be canceled.

day of
of

in the year 18-, before me,
duly appeared
and

a

his wife, well

Be it remembered that on this within and for said county and known to me to be the persons who are described in and who executed the instrument, and severally duly acknowledged to me that they executed the same. And , who is de scribed as a married woman in, and whose signature is attached to, the within and foregoing instrument, upon an examination separate and apart from her husband, being by me made acquainted with the contents of this relinquishment, acknowledged to me that she executed the same freely and voluntarily, and wished not to retract such execution. In witness whereof, I have hereunto set my hand and official seal, at said county, the day and year above written.

[SEAL.]

NOTE.-In case of the loss of the duplicate receipt, an affidavit showing that fact must accompany the relinquishment, said affidavit to show the date of entry and description of the tract relinquished, and that although diligent search has been made therefor, the party is unable to find the same.

The relinquishment of a homestead entry must be the free and voluntary act of the claimant(1).

(1)Hanson v. Geiger, Land Owner, V. 4, p. 146.

Relinquishment obtained while the homestead party was wholly or partially under the influence of intoxicating liquors is void(1).

A relinquishment obtained while the claimant was in a drunken stupor, and objected to afterwards, cannot be considered a voluntary act(").

Procured through fraud does not defeat claim (3).

The relinquishment of an entry will not be recognized except on proof of proper authority therefor(*).

A relinquishment made after issue of final certificate, and after transfer of title by claimant is void(3).

A relinquishment cannot be executed by the guardian of an insane claimant(®). An administrator may execute relinquishment, under the order of a court("). An executor, as such, cannot execute a relinquishment().

A relinquishment by the executor and sole devisee of timber culture claim may be received (").

A widow or administrator can alone relinquish when the sole heir of the deceased (1o).

The administrator of the estate of a party who died intestate should not be allowed to relinquish the homestead entry, but a relinquishment to be accepted must be made by each and every one of the heirs(").

The following instructions were issued by the General Land Office, relative to deceased claimants whose representatives desired to relinquish the unperfected entries:

In case of George H. Hudson, reported in Copp's Land Owner, Vol. 2, p. 99, the deceased left no widow, nor any children; he died testate, naming William H. Hudson his executor, and one Mary Emily Hudson, an unmarried woman of full age, his sole legatee, and the original duplicate receipt cannot be found.

The cancellation desired will be made upon the written relinquishment of the legatee (which should describe the land by its proper numbers, and specify date and number of the entry), accompanied by an affidavit which may be made either by the legatee or the executor, setting forth the loss of the duplicate receiver's receipt.

Proof must accompany the relinquishment establishing the fact that Hudson, the deceased, left no widow or minor children, and that Mary Emily Hudson is the sole legatee, and the identical person named in the will.

This may be done by furnishing a duly attested copy of the will under the seal of the proper court, together with the certificate under seal of the judge or clerk having probate jurisdiction, as to the identity of the person of the legatee, and the fact that no widow or minor children survive.

If the records of the probate court do not evidence the identity of the legatee or the fact of non-survivor, then these facts may be established by the affidavit of the legatee, corroborated by the affidavits of any two witnesses who may have cognizance of the facts.

In case of Achille Savoie, reported in Copp's Land Owner, Vol. 4, p. 51, the

(1)Desarchy v. Juarez, Land Owner, V. 10, ()William B. Dearlove, Copp's Land Laws, p. 91. p. 883. (2)Duncan v. Campbell, Land Owner, V. 10, (7)Peter W. Bennet, Copp's Land Laws, p. 489. p. 349. (8) E. V. Lapham, Copp's Land Laws, p. 882. Smith v. Laring, Copp's Land Laws, p. 720. (9)Ferdinand Favro, Copp's Land Laws, p.882. (Childs v. Cornelius, Land Owner, V. 10, p. (10) George Taylor, Land Owner, V. 9, p. 37. 366. (1)General Land Office Instructions, Land Owner, V. 5, p. 165.

(Falconer v. Hunt et al., Copp's Land Laws, p. 510.

papers sent up show the appointment of Monnier as administrator of the succession of Achille Savoie, deceased," and the loss of the duplicate homestead receipt. The party to the homestead entry stated in his homestead affidavit that he was "the head of a family." If he left a widow, a relinquishment to be accepted must be executed by her.

If the party left no widow, but left an infant child or children, the entry may be relinquished by the administrator, executor or guardian by order of the probate court having jurisdiction, in which case it should be clearly shown that no widow was left, and that the relinquishment is made by such order.

If he left no widow or infant child, the relinquishment may be made by the party or parties recognized by the local court as the sole and only legal representative or representatives of the deceased, in which case a certificate to that effect by said court should be forwarded with the relinquishment duly executed (1).

Not allowed of less than 40 acre tract, in a homestead claim, unless there is a mineral segregation(2).

A homestead claimant may relinquish part of his entry without assigning any reason for such action, and may commute part of his claim before or after cancellation of the remaining portion(3).

"In case a homestead entry embracing an area in excess of 160 acres (the party paying for such excess) is canceled for relinquishment, the party to the entry has no claim to the excess in area over 160 acres(*).

A relinquishment is of no effect until filed in the local office(3).

The moment a relinquishment is filed, the land covered by the entry thus abandoned reverts to the Government, and is open to settlement and entry. When the relinquishment is presented, the entry should be immediately canceled without reference to what party may acquire a preference right of entry by such cancellation(").

Purchasers of relinquishments buy at their own risk(').

The purchaser of the relinquishment of public land entry gains no rights against the United States from the mere fact of such purchase, and the question of duplicate sales or of the payment or non-payment of the purchase money, has no legal bearing in the determination of a case(®).

Where a party made a homestead entry, believing residence on the land was not required, and voluntarily relinquished his entry, his application for return of the fees and commissions cannot be granted().

A person making a homestead entry cannot be allowed to relinquish it and make another, because he found the land different from what he expected(1).

Should it appear upon a proper showing that swamp land to which a State is entitled has been embraced in a homestead entry, said entry will be canceled, and the party may make another entry.

A relinquishment filed pending a contest is presumed to be the result of the contest, but such presumption is not conclusive, and upon proof that the relinquishment was not the result of the contest, the contestant must depend upon an ability to sustain the charges(1)..

A relinquishment of an entry, framed in terms of absolute and unconditional

(18) Cinthya Gibson, Land Owner, V. 3, p. 114. (Evan Ellis, Copp's Land Laws, p. 487.

J. L. Gray, Land Owner. V. 6, p. 153. (4)S. A. Baker, Land Owner, V. 10, p. 360. (")Hemsworth v. Holland, Copp's Land Laws, p. 134.

()Whitford v. Kenton, Land Owner, V. 10, p. 374
(7)Relinquishments, Copp's Land Laws, p. 365.
(8) Andrew Korbe, Land Owner, V.10, p. 124.
(9)John Garland, Land Owner, V.9, p. 168.
(1)John Nunan, Land Owner, V. 1, p. 34.
(1)Osborne v. Crow, Land Owner, V. 17, p. 124.

surrender of all rights claimed thereunder, is not limited or modified in its operation by the written statement therein that such relinquishment is made for the purpose of making a new entry in lieu of the one relinquished. Where the evidence is conflicting, concurring decisions of the local and General Land Offices on questions of fact are generally accepted as conclusive by the Department.(1).

In the event of a legal contest, pending when the relinquishment is filed, the preference right of entry inures to the contestant(2).

A relinquishment does not open land to pre-emption entry until filed; if then a legal contest and application to enter are pending, the contestant on the successful termination of the contest has a preference right of entry(3).

A preference right of entry is not assignable, and cannot be transferred by a father to his daughter.

Where the contestant alleges the sale and relinquishment of a homestead entry it is not essential that he produce the relinquishment itself at the hearing(“). Whether a relinquishment is the result of contest or not, may be investigated at a hearing(").

A relinquishment executed prior to contest and filed after its dismissal held not to inure to contestant's benefit().

A relinquishment may inure to the benefit of a second contestant, if first contest was collusive or fraudulent(").

Filing of a relinquishment accompanied by a pre-emption declaratory statement, defeats simultaneous application to contest(3).

II. Soldiers' and Sailors' Homesteads.

a. ORIGINAL ENTRIES.

The Revised Statutes of the United States granting homesteads to soldiers, their widows and orphan children, are the following:

SECTION 2304. Every private soldier and officer who has served in the Army of the United States during the recent rebellion, for ninety days, and who was honorably discharged, and has remained loyal to the Government, including the troops mustered into the service of the United States by virtue of the third section of an act approved February thirteen, eighteen hundred and sixty-two, and every seaman, marine, and officer who has served in the Navy of the United States, or in the Marine Corps, during the rebellion, for ninety days, and who was honorably discharged, and has remained loyal to the Government, shall, on compliance with the provisions of this chapter, as hereinafter modified, be entitled to enter upon and receive patent for a quantity of public lands not exceeding one hundred and sixty acres, or one quarter-section, to be taken in compact form, according to legal subdivisions, including the alternate reserved sections of public land along the line of any railroad or other public work, not otherwise reserved or appropriated, and other lands subject to entry under the homestead laws of the United States; but such homestead settler shall be allowed six months after locating his homestead, and filing his declaratory statement, within which to make his entry and commence his settlement and improvement.

(1)Cleveland v. North, Land Owner. V. 17, p. 173. ()Croughan v. Smith et al., Copp's Land Laws, ()Whitford v. Kenton. Land Owner, V. 10, p. p. 185. 374.

A. J. Doremus, Land Owner, V. 10, p. 391. (4) Henton v. Howard, Land Owner, V. 9, p. 170. (5) Webb v. Loughrey, Copp's Land Laws, p. 182.

(7)Melcher v. Clark, Copp's Land Laws, p. 118. (8) Lee v. Goodmanson, Copp's Land Laws, p. 186.