annexed to the affidavit) was published in said newspaper once each week for five successive weeks. CERTIFICATE AS TO THE POSTING OF NOTICE. LAND OFFICE AT 18. I, Register, do hereby certify that a notice, a printed copy of which is hereto attached, was by me posted in a conspicuous place in my office for a period of thirty days, I having first posted said notice on the day of 18-. PROOF OF PUBLICATION. Register. (COPY OF NOTICE.) of SS, -, in county of -, being duly sworn, deposes and says that he is the of the a newspaper published at county, in the of ; that the notice of the intention of (and) to make final homestead proof, a copy of which is hereto attached, was first published in said newspaper in its issue dated the of 188-, and was published in each weekly issue of said newspaper thereafter for the full period of thirty days, the last publication thereof being in the issue dated the 188-. of Subscribed and sworn to before me this [Seal.] day of A. D., 188-. -, Notary Public. In making final proof, the homestead party may appear in person at the district land office, with his witnesses, and there make the affidavit and proof required in support of his claim; or he may appear with his witnesses before the judge of a court of record of the county and State, or district and Territory, in which the land is situated, and there make the final proof required, as follows, which proof, duly authenticated by the court seal, is required to be transmitted by the judge, or the clerk of the court, to the Register and Receiver, together with the fee and charges allowed by law. I, HOMESTEAD PROOF. FINAL AFFIDAVIT REQUIRED OF HOMESTEAD CLAIMANTS. -, having made a homestead entry of the section No. in township No.-, of range No. subject to entry at under section No. 2289 of the Revised Statutes of the United States, do now apply to perfect my claim thereto by virtue of section No. 2291 of the Revised Statutes of the United States; and for that purpose do solemnly that I am a citizen of the United States; that I have made actual settlement upon and have cultivated said land, having resided thereon since the day of 18-, to the present time; that no part of said land has been alienated, except as provided in section 2288 of the Revised Statutes, but that I am the sole bona fide owner as an actual settler; that I will bear true allegiance to the Government of the United States; and further, that I have not heretofore perfected or abandoned an entry made under the Homestead Laws of the United States. I, -- of the land office at sworn to befon me this day of do hereby certify that the above affidavit was subscribed and 18-. HOMESTEAD PROOF. being called as a witness in his own behalf in support of homestead entry No. Ques. 1. What is your name-written in full and correctly spelled-your age, and post-office address? Ques. 2. Are you a native of the United States, or have you been naturalized? for Ques. 3. When was your house built on the land, and when did you establish actual residence therein? (Describe said house and other improvements which you have placed on the land, giving total value thereof.) Ans.. Ques. 4. Of whom does your family consist; and have you and your family resided continuously on the land since first establishing residence thereon? (If unmarried, state the fact.) Ans. Ques. 5. For what period or periods have you been absent from the homestead since making settlement, and for what purpose; aud if temporarily absent, did your family reside upon and cultivate the land during such absence? Ans. Ans. Ques, 6. How much of the land have you cultivated, and for how many seasons have you raised crops thereon? Ques. 8. Have you ever made any other homestead entry? (If so, describe the same.) Ans. Ques. 9. Have you sold, conveyed, or mortgaged any portion of the land; and if so, to whom, and for what purpose? Ans. I HEREBY CERTIFY that the foregoing testimony was read to the claimant before being subscribed, and was sworn to before me this - day of -, 188 NOTE.-If naturalized, the claimant must file a certified copy of his certificate of naturalization. In a commuted homestead, a foreign-born claimant, if not naturalized, must file a certified copy of his declaration of intention. In making proof, the party must surrender his original duplicate receipt, or file affidavit of its loss. NOTE.-The officer before whom the testimony is taken should call the attention of the witness to the following section of the Revised Statutes, and state to him that it is the purpose of the Government, if it be ascertained that he testifies falsely, to prosecute him to the full extent of the law. TITLE LXX.-CRIMES -CH. 4. SEC. 5392. Every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years, and shall, moreover, thereafter, be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed. [See & 1750.] Ques. 3. Was the claimant qualified to make said entry? (State whether the settler was a citizen of the United States, over the age of twenty-one years, or the head of a family, and whether he ever made a former homestead entry.) Ans. Ques. 4. When did claimant settle upon the homestead, and at what date did he establish actual residence thereon? (Describe the dwelling and other improvements, giving total value thereof.) Ans. Ques. 5. Have claimant and family resided continuously on the homestead since first establishing residence thereon? (If settler is unmarried, state the fact.) Ans. Ques. 6. For what period or periods has the settler been absent from the land since making settlement, and for what purpose; and if temporarily absent, did claimant's family reside upon and cultivate the land during such absence? Ans.. Ques. 7. How much of the homestead has the settler cultivated, and for how many seasons did he raise crops thereon? Ans. Ques. 8. Are there any indications of coal, salines, or minerals of any kinds on the homestead? (If so, decribe what they are, and state whether the land is more valuable for agricultural than for mineral purposes.) Ans. Ques. 9. Has the claimant mortgaged, sold, or contracted to sell, any portion of said homestead? Ques. 10. Are you interested in this claim; and do you think the settler has acted in entire good faith in perfecting his entry? Ans. The Receiver will thereupon, if the proof is satisfactory, issue his receipt, as follows, a duplicate being sent or given to the claimant : FINAL RECEIVER'S RECEIPT, No. —. of county, the sum of of section APPLICATION NO. (Date) 18cents, being the balance of of range contain Receiver. Received from dollars and payment required by law for the entry of in township ing acres, under section 2291 of the Revised Statutes of the United States. $-. The judge being absent in any case, the proof may be made before the clerk of the proper The fact of the absence of the judge must be certified in the papers by the clerk acting in his place. court. If the land in any case is situated in an unorganized county, the statute provides that the party may proceed to make the proof in the manner indicated in any adjacent county in the State or Territory. The fact that the county in which the land lies is unorganized, and that the county in which the proof is made is adjacent thereto, must be certified by the officer. In any case where the final proof shall be transmitted to the Register and Receiver, as contemplated in this act, and the full amount of money due shall be paid, they will carefully examine the proof, and, if any objection appears, they will promptly notify the party and advise him of his rights in the matter. In cases in which final homestead proof is made before the judge, or in his absence before the clerk of a court of record, the Register and Receiver of the district land office are entitled to the same fee for examining and approving the proof so made as if the proof were taken and reduced to writing by them, for the claimants, viz., fifteen cents per hundred words, and on the Pacific Coast, twenty-two and one-half cents per hundred words(*). In the Act of Congress of March 3, 1877, which provides that final proof in homestead entries may be made before the judge, or, in his absence, before the clerk of any court of record of the county and State, or district and Territory, in which the lands are situated; the terms "in his absence," refer to the absence of the judge from the county seat or place where the court for the county is held. Where the clerk takes the proof, he should set forth in his certificate to the papers that the case was such as to authorize him to do so under the act; and for this, it will be sufficient for him to certify that the proof was made before him "in the absence of the judge," using the language of the statute(). County courts in Florida are courts of record, and the judges and clerks of such courts are qualified to take final proof in homestead cases(*). ADJOINING FARM ENTRIES. The proceedings in this class of cases are the same as in other homestead entries. It is not required that the applicant should prove actual residence on the separate tract entered; but if he does not, it must appear from the proof adduced (the forms previously given being modified to suit the circumstances of the case), 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. I, FINAL AFFIDAVIT REQUIRED OF ADJOINING FARM HOMESTEAD CLAIMANTS. having made a homestead entry of the section No., in township No.-,. of range No. subject to entry at for the use of an adjoining farm owned and occupied by me on the of section No. in township No. of range No.- under section 2289 of the Revised Statutes, do now apply to perfect my claim thereto by virtue of section No. 2291 of the same, and for that purpose do solemnly that I am a citizen of the United States; that I have continued to own and occupy the land constituting my original farm, having resided thereon since the -, 18-, to the present time, and have made use of the said entered tract as a part of my homestead, and have improved the same in the following manner, viz. : That no part of said land has been alienated, but that I am the sole bona fide owner as an actual settler; that I will bear true allegiance to the Government of the United States; and, further, that I have not heretofore perfected or abandoued an entry under the homestead laws. day of of the land office at, do hereby certify that the above affidavit was taken and sub- I, scribed before me this Where it is shown that a homestead entry was made for the use of an adjoining farm, by a party who owns only a half undivided interest in an original farm, such homestead entry will be passed for patenting if the law has been complied with in other respects(). COMMUTATION OF HOMESTEAD ENTRIES. If the homestead settler does not wish to remain five years on his tract, the law permits him to pay for it with cash, or warrants, or agricultural-college scrip, upon making proof of settlement and cultivation for a period of not less than six months from the date of entry to the time of payment; or payment may now be made with private-claim scrip under the act of January 28, 1879. This proof of actual settlement and cultivation must be the affidavit of the party, made in the form below, in addition to the testimony usual in making final homestead proof, with a few verbal changes. Published notice as usual must be given prior to taking the final proof. AFFIDAVIT. section day of I, claiming the right to commute, under section 2301 of the Revised Statutes of the United States, my homestead entry No. —, made upon the township -, range -, do solemnly swear that I made settlement upon said land on the 18-, and that since such date, to wit: on the day of 18, I have built a house on said land, and have continued to reside therein up to the present time; that I have broken and cultivated acres of said land, and that no part of said land has been alienated, except as provided in section 2288 of the Revised Statutes, but that I am the sole bona fide owner as an actual settler. (*) Instructions, Land Owner, Vol. 4, p. 162, (c) Instructions, Land Owner, Vol. 4, P. 179. (b) W. S. Search, Land Owner, Vol. 4, p. 162. I further swear that I have not heretofore perfected or abandoned an entry made under the homestead laws of the United States. Subscribed and sworn to before me this LAND OFFICE day of- -. [May now be made before clerk of court.] -, Register. Any person should be allowed to commute who, at the time application to commute is made, is the proper party entitled to make final proof at the right time, provided the claim so far as it has progressed is valid("). After a homestead has been relinquished in part, the balance may be commuted (b). Where a party commutes his homestead to cash, his rights under the pre-emption law are not affected, ¿. è̟., he may, if qualified, make an entry under the pre-emption law(®). WHO SHALL MAKE FINAL PROOF. As many cases arise wherein it is difficult to decide who shall make the final proof, the fol lowing rulings of the Land Department are appended : In case of death of an unmarried homestead settler prior to expiration of the five years, his heirs or devisee may commute or continue cultivation and settlement. If death occurred after the expiration of the five years, the heirs or devisee may at once make proof. In these cases patent would issue in the name of "the heirs" of deceased, or in the name of his devisee(). A deserted wife cannot contest her husband's entry for abandonment while the marriage remains legally valid(®). A married woman can become entitled to credit on a homestead for her husband's military services during the late war. Where a deceased homestead claimant left a wife from whom he had been separated by written articles of agreement, such widow is the proper party to make final proof, notwithstanding the fact that the deceased claimant willed all his estate, both real and personal, to his brother(). Where a patent, erroneously issued to a deceased person, has been recorded in the county records, the legal representatives must release all their right and title to the land before the General Land Office can issue another patent in the name of the widow(8). Aliens who have not declared their intentions to become citizens of the United States cannot, as heirs, perfect title to homesteads (1). The General Land Office can recognize a nuncupative will only after it has been duly probated and accepted by the proper court(1). In case the homestead party died, and his widow was convicted of his murder by poison, for which she is now imprisoned in the penitentiary, pursuant to law, although under a death sentence, the administrator of the deceased party should make the final proof, and the patent be issued in the name of his minor children(). Where a homesteader is prevented from making final proof by reason of being confined in the penitentiary, a legally appointed person may make such proof, and if found satisfactory, the patent will issue in the name of the party so deprived of his liberty(*). A woman divorced from her husband is legally dead, and if there was an infant living when the homesteader died, the right shall inure for the child's benefit, notwithstanding a will devising the land to the claimant's mother, who resides thereon(1). A Receiver of a land office is entitled to make final proof on a homestead entry made by him prior to his appointment. made final proof upon a homestead entry made by A Receiver of a land office who has () John L. Gray, Land Owner, Vol. 6, p. 153. him prior to his appointment as Receiver, may make an additional entry under the provisions of the act of June 8, 1872(*). A contest for abandonment of an additional entry made under the act of June 8, 1872, will not be entertained (Ib). The possession of an executor or administrator is, under the homestead law, the possession of the heirs or devisee, subject to the right of administration vested in the officer, and time allowed by the court for the settlement of the estate must be counted for the heirs or devisee in making final proof(b). Mary Latt made a homestead entry, then married J. M. Johnson and died, leaving no heirs except Johnson. He was allowed to make final proof, and patent issued in name of Mary Johnson, formerly Mary Latt("). The granting of letters of administration will be regarded as sufficient evidence of death. Unexplained absence for two months is not sufficient evidence of death to warrant issue of patent to the heirs(a). e. ABANDONMENT. 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 entry for more than six months at any time, such entry wil be canceled and the land revert to the government. A homestead claimant elected to a public office which compels him to leave his land to discharge its duties, is not considered as changing his residence or abandoning his land, if he keeps up his improvements and the circumstances show his good faith in maintaining his residence. Abandonment or change of residence is a 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 cases 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. White vs. Laffery, Land Owner, Vol. 1, p. 114. (b) Dorame vs. Towers, Land Owner, Vol. 2, p. 131. Mary Latt, Land Owner, Vol. 4, p. 103. (d) A. Seidensticker, Land Owner, Vol. 8, p. 55. Snyder vs. Abbott, Copp's Public Land Laws, p. 258. General Land Office Instructions. Copp's Public Land Laws, p. 249. |