may have been used to secure it, any more than the judgment of a court of justice can be assailed on like grounds. 106 U. S. 447. If proceedings are ever stayed before the land department by departmental order for special reasons until the determination of a question before the courts as to the right of possession to a certain tract of land, it is more an act of courtesy and deference to the judicial department of the government than a duty or obligation imposed by law. § 115. Presumptions under Patent.—The presumptions under a patent are that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law. It is this unassailable character in a court of law that gives to it its chief, indeed its only, value. But in a court of equity, as we have seen, a patent may be impeached upon many grounds by a direct proceeding; and in an action at law, it may be collaterally impeached on the ground that the law did not provide for selling of the lands, or that they had been reserved from sale or dedicated to special purposes, or that they had been previously transferred by government to others. Copp's L. O., April, 1882, p. 15. A party desiring to have a patent set aside should make application to the secretary of the interior for permission to proceed in the name of the government in the proper circuit court of the United States. The application should be accompanied with affidavits of merit, stating the facts in detail on which the party expects to rely. But where the party interested can plead an estoppel, or simply desires to hold the patentee of the government as trustee, and to have the court. declare that he holds the property for the benefit of another, suits are sometimes commenced in state courts, but upon a proper showing they are frequently transferred to circuit courts of the United States. § 116. Mandamus will lie to compel the delivery of a patent after it is issued. United States ex rel. McBride v. Carl Schurz, Sickels' Mining Laws, p. 610. § 117. Appeals.-An appeal lies from the decision of the register and receiver to the commissioner of the general land office; from the decision of the commissioner to the secretary of the interior; and the supreme court of the United States say, in Shepley et al. v. Cowan, 1 Otto, 330, that perhaps, under special circumstances, an appeal may be taken to the president. See Rules of Practice, 86. The rule is that the ordering of rehearing is a matter within the discretion of the commissioner of the general land office, from whose decision an appeal does not lie. Copp's L. O., vol. 6, p. 4. When a homestead entry upon public lands has been made by a settler, the land so entered can not, while such entry stands, be set apart by the president for a military reservation, even prior to the completion of full title in the settler; but land covered by pre-emption filing may be so set apart to final proof. Copp's L. L., p. 387. § 118. The secretary of the interior holds that the failure of a claimant to file in time does not defeat his claim except when another settler has filed and complied with the law. This decision overrules the department decision in the case of Serreno v. Southern P. R. R. Co. Copp's L. O., vol. 8, p. 181. § 119. Borax, nitrate and carbonate of soda, sulphur, alum, and asphalt should be located under the instructions and regulations of October 31, 1881. § 120. Additional Homesteads.-There is a class of homesteads designated as "adjoining farm homesteads." In these cases the law allows an applicant owning and residing on an original farm to enter other land lying contiguous thereto, which shall not, with such farm, exceed in the aggregate 160 acres, under section 2289 of the revised statutes as modified by the acts of congress of March 3, 1879, July 1, 1879, and June 15, 1880, before mentioned. In applying for land of this class, the party must make affidavit describing the tract which he owns, and upon which he resides, as his original farm. In making final proof, it is not required that he should prove actual residence on the separate tract entered; but if he does not, it must appear from the proof adduced that he has continued for the period required by law to reside upon and cultivate the original farm tract, making use of the entered tract as a part of the homestead. § 121. Act of March 3, 1879.-The act of March 3, 1879, in addition to its provisions already referred to, provides, that "any person who has, under existing laws, taken a home stead on any even section within the limits of any railroad or military road land grant, and who, by existing laws, shall have been restricted to eighty acres, may enter, under the homestead laws, an additional eighty acres adjoining the land embraced in his original entry, if such additional land be subject to entry," without payment of fees and commissions, and that "the residence and cultivation of such person upon and of the land embraced in his original entry shall be considered residence and cultivation for the same length of time upon and of the land embraced in his additional entry, and shall be deducted from the five years' residence required by law," with the proviso, however, that in no case shall patent issue "until the person has actually and in conformity with the homestead laws occupied, resided upon, and cultivated the land" embraced in his additional entry "at least one year." § 122. Act of July 1, 1879.-The act of July 1, 1879, is similar in effect. Upon any party proposing to enter an additional tract under these provisions, the register and receiver will require him to submit proof which shall set forth the particulars of his existing entry, and of his compliance with the legal requirements regarding the same, according to forms provided for use in making final proof, 4-369 and 4-370, as also to swear that he did not serve in the army or navy of the United States during the late civil war for ninety days or more, as the class of persons who thus served were not restricted to eighty acres, under previously existing laws, and therefore are not entitled to the benefits of the acts referred to, and to make homestead application and affidavit according to attached forms, 4-018 and 4-086. The required proof is found necessary to ascertain the status of the original entry at the date of application for the benefit of the said acts, and also the credit for residence and cultivation to which the party who made the same may be entitled, according to their provisions, in perfecting his title under the additional or new entry to be allowed, without waiting the arrival of the time when final proof on the latter is to be made. With reference, however, to cases in which final proof on the original entries has been made and the certificate issued, the requirement of proof as herein directed may be omitted, and in lieu thereof, a reference made in reporting the case to the certificate issued, giving its number and date, so that it may be identified on the records of this office. § 123. These requirements having been complied with, the register and receiver will then, if they find his original entry to be intact on their records, whether patented or not, and if no objection appears in any respect, allow the entry applied for, note the same on their records, giving it the proper number in the regular homestead series, and report it with their monthly homestead returns, indicating its character as an additional entry under said act on the margin of their monthly abstracts, with a reference to the original entry by its number, and the description of the land. The money columns in the abstracts will of course be left blank, since there will be no fees and commissions paid. In this class of entries the party, if still resident on the original entry tract, will not be required to remove therefrom to the additional entry tract in order to make a new residence on the latter, as the two forming one body of land, residence on either will be regarded as satisfying the legal requirement; but in making final proof on the additional entry, the party must show such residence, with occupancy and cultivation of the tract taken as additional under said act, for five years from the date of entry thereof, less the time to be deducted on account of residence and cultivation on the original entry, which shal not exceed four years in any case. The acts further provide, that should the person so elect, he may, instead of making an additional entry, "surrender his existing entry to the United States for cancellation, and thereupon be entitled to enter lands under the homstead laws the same as if the surrendered entry had not been made," with the same provisions, as regards fees and commissions not being required, and requiring settlement and cultivation, occupation, and residence, as have been already stated with regard to additional entries. In case of any party electing to surrender his entry under this act, the register and receiver will receive his relinquishment, which shall specify for what purpose made, and be accompanied by the duplicate receipt issued for the relinquished entry, or by a statement under oath showing a good reason for its absence, report the case in a special letter to this office, and await instructions before proceeding further in the matter. Relinquishments may be made in the same manner as hereinbefore provided for. See also opinion of commissioner, Copp's L. L., p. 401. § 127. Homestead Settlers Allowed Same Time as Pre-emptors to File Application for Lands. § 128. Certificate and Patent, when Given and Issued. § 129. When Rights Inure to the Benefit of Infant Children. § 130. § 131. Homestead Entries of Insane Persons Confirmed in Certain Cases. § 132. When Persons may Make Affidavit before Clerk of Court. § 134. Homestead Lands not to be Subject to Prior Debts. § 135. § 136. When Lands Entered for Homesteads Revert to Government. § 139. Publication of Notice of Entry. Lands Covered by Relinquished Homestead Claims Subject to Entry at Once. § 140. Party Contesting Homestead Entry Allowed Thirty Days after Notice of Cancellation to Make Entry. § 141. Limitation of Amount Entered for Homestead. § 142. Existing Pre-emption Rights not Impaired. § 143. What Minors may have the Privileges of this Chapter. § 144. Payment before Expiration of Five Years; Rights of Applicant. Deduction of Military and Naval Service from Time, etc. § 152. §153. Homestead Right Extended to Indians Who Sever their Tribal Rela Chiefs, etc., of Stockbridge Munsees, Homestead Rights of. § 156. Exemption of Homestead of Stockbridge Munsees. § 157. Stockbridge Munsees Becoming Citizens. § 158. Unsold Lands of Ottawa and Chippewa Indians, how Opened for § 159. Selections for Minors under Preceding Section. |